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

Tekuru v The State [2004] FJHC 94; HAA0022.2004S (23 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0022 OF 2004S

BETWEEN:

SALACIELI TEKURU and RUSIATE LEVULA
Appellants

AND:

THE STATE
Respondent

Hearing: 19th April 2004
Judgment: 23rd April 2004

Counsel: Appellants in Person
Mr. D. Prasad for State

JUDGMENT

The Appellants appeal against their convictions and sentences in respect of the following charge:

Statement of Offence

LARCENY FROM PERSON: Contrary to section 271 of the Penal Code, Act. 17.

Particulars of Offence

MALAKAI JEKE VAKARARAWA, SALICIELI TEKURU and RUSIATE LEVULA, on the 25th day of January, 2002 at Samabula in the Central Division, stole a purse valued $200.00, one gold chain valued $800.00, one pair gold earring valued $200.00, one driving licence valued $33.00 and cash of $130.00, to the total value of $1,363.00 from the person of MANJULA SINGH d/o BABU RAM.

They were the second and third defendants in the lower court. The 1st defendant pleaded guilty and was sentenced to 3½ years imprisonment. The trial commenced on the 8th of July 2003. Manjula Singh gave evidence that on 25th January 2002 at 6.45pm she was at the Superfresh ATM machine withdrawing cash when someone came from behind and grabbed her purse. It contained $130 cash, a broken chain, and a pair of earring, together with her driver’s licence, FNPF card and Fiji Care card. Her son tried to stop the person who had taken the purse but he slipped away. She described the person as a young Fijian boy. Under cross-examination she said that she had seen neither of the two Appellants that night.

PW2, Mafilio Sovaki was on her way to Superfresh at the same time when she saw a white taxi parked in front of her driveway driven by an Indian boy. A Fijian girl and two Fijian boys got into the taxi. She recognised the driver and the Fijian girl. She saw one of the boys in the taxi signal to someone in the Superfresh car park, and she saw a boy at the ATM grab the purse and run down the short-cut. The taxi went down towards Mead Road. She agreed that the two accused had not taken the purse. In response to the court’s questioning, she said that both Appellants were in the white taxi and she had identified them at the police station.

PW3, Cpl. Vilitati gave evidence that on the 25th of January 2002, he was waiting outside Superfresh while his wife was shopping inside when he heard a woman yelling at the top of her voice. He asked a van driver to help him apprehend the suspect. He knew that the suspect had run down the short cut so he went to Vunakece Road and he saw a taxi pulling slowly out of Tuisowaqa Road. The suspect was running with his head through the taxi window. The van driver blocked the road and PW3 took the Appellants to the Samabula Police Station with the other suspect. He said he knew the Appellants well.

PW4 was the taxi driver, Shiri Ram. He said that on the 25th of January 2002, he was driving his taxi when he picked up a girl and three boys at the Sukanaivalu junction. The two Appellants were present. He took them to Superfresh where the three boys got off. PW4 went to Kavu Place and Tuisowaqa Road with the girl (the remaining passenger) when she asked him to return to Superfresh. The two Appellants were standing near a hedge on the main road and re-boarded the taxi. They told PW4 to drive fast down Vunakece Road, take a turn at Tuisowaqa Road and stop the taxi there for the third boy to re-board the taxi. He followed their instructions, but just as the boy was about to board the taxi, he was pulled away by the police and taken to the Namadi Police Post. Under cross-examination, he said that he was receiving instructions from the girl and from the 2nd Appellant.

PW5 was Police Constable Sakenasa, who interviewed the 1st Appellant. He admitted being in PW5’s taxi that day but said that a boy boarded the taxi suddenly at Namadi Heights and was arrested by police. He said he did not know that boy and had nothing to do with the stealing of the purse.

The 2nd Appellant was interviewed by Police Constable Navitalai. He said that he did not know the boy who got into their taxi and had nothing to do with the theft.

Both Appellants gave sworn evidence which was consistent with their police interviews. The 2nd Appellant under cross-examination appears to have fared badly. He was asked "You were part of the offence?" and he answered: "I may be part of it but it was not a planned job."

DW3 was Malakai Vakararawa, who said that he stole from the lady but did not know the two Appellants. Under cross-examination he said that he was in court to support his friends because they did not know anything.

In her judgment, the learned Magistrate said that the prosecution case was supported by the defence case in that the Appellants did not deny being in the taxi. She said that she accepted the evidence of PW2, PW3 and PW4 and found that the Appellants had aided DW3 to commit the offence. She convicted both Appellants and sentenced them to 3 years imprisonment to run from the day of remand.

The Appellants’ appeals are very similar and may be summarised thus:

1. PW4’s evidence was uncorroborated and he was an accomplice.

2. There was no evidence of planning.

3. There was no evidence of mens rea.

4. The learned Magistrate failed to consider that the caution interviews were consistent with the defence.

5. The sentence was harsh and excessive.

In court the Appellants made oral and presented written submissions to the effect that there was insufficient evidence to show their complicity in the crime alleged.

The State opposes the appeal saying that there was sufficient evidence to warrant the convictions and that the sentences were within the tariff.

The conviction

It is clear from the way the prosecution was run, that the Appellants were alleged to be accomplices to the principal offender, who had actually snatched the bag. The only real issue at the trial was whether the Appellant’s presence at the scene was mere coincidence, or part of a plan to steal PW1’s purse. There was indeed no direct evidence that the Appellants were part of the criminal enterprise. The evidence pointing to a previous plan, was circumstantial. It is unfortunate that the learned Magistrate did not refer to the law on circumstantial evidence in her judgment. The law is that where the prosecution relies on circumstantial evidence to prove its case, the accused can only be found guilty if the only reasonable inference the court can draw from the set of circumstances, is the guilt of the accused. There must be no other available and reasonable inference which is equally consistent with the accused’s innocence, and the court must be satisfied of the accused’s guilt beyond reasonable doubt.

In Amina Begum Koya v. The State Crim. App. AAU0011 of 1996 the Court of Appeal adopted the following passage from Shepherd v. R (1990) 170 CLR as a useful summary on the correct approach in cases of circumstantial evidence:

"Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par 2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." (per Dawson J)

If the case is one where the evidence consists of strands in a cable rather than links in a chain, then all the court must do is satisfy itself of the guilt of the accused on all the evidence. This was a case of "strands in a cable", the prosecution relying on presence at the scene, behaviour of the taxi, the signal at the carpark and the thief’s own sprint to the apparently waiting taxi containing the two Appellants. The question for the learned Magistrate was to consider whether on all of this evidence, she was satisfied of the guilt of the accused beyond reasonable doubt, and whether there was any other inference consistent with innocence, reasonably open on the evidence.

The circumstantial evidence in this case, assuming that one accepts the evidence of the witnesses for the prosecution was:

1. PW2’s evidence that the people in the white taxi signalled to the principal offender at the ATM machine just before the offence was committed.

2. PW2’s evidence that the principal offender ran down the short cut and the taxi went to Mead Road at the same time.

3. PW3’s evidence that the principal offender was trying to get into the same white taxi at Tuisowaqa Road.

4. PW4’s evidence that the two Appellants got into the taxi near Superfresh and told him to drive fast to Tuisowaqa Road.

5. That they told him to allow the principal offender to get into the taxi.

6. That the Appellants admitted being in the taxi.

The learned Magistrate did not ask if the only reasonable inference to be drawn from these facts, was the guilt of the accused. Nor did she refer anywhere in her judgment, to the burden and standard of proof. This is not necessarily fatal as long as the wording of the judgment shows that the court was aware of the burden of proof and was directing itself about it. Unfortunately, the judgment does not display any such awareness and there is a reference (at page 30 of the record) to the accused failing "to exonerate themselves" which suggests that the burden of proving innocence was on the accused.

Finally, the learned Magistrate needed to direct herself on the law on secondary offenders. The prosecution case was that the Appellants aided and abetted the principal offender to commit the offence. The learned Magistrate needed to be satisfied beyond reasonable doubt that they did something positive to assist the thief, and did so realising that the offence would be committed. It was held in R v. Powell and anor; R v. English (1999) AC 1, that a secondary party is guilty, for instance, of murder, if he participates in a joint venture realising that the principal might commit the offence. An aider and abetter will rarely share the same mens rea as the principal. What must be proved is an intention to render assistance knowing that the other may commit the offence. She also needed to consider the evidence against each Appellant separately to be satisfied that the presence of each in the car was in order to further the criminal enterprise and was not accidental.

The judgment is silent on the law on secondary offenders and on the mens rea required to be proved for aiders and abetters.

In all the circumstances I consider that the combination of all these errors of law must lead to a quashing of the conviction. The appeals against convictions succeed. The convictions are quashed.

Result

On the basis of the strength of the prosecution case and despite the 2 year delay since the commission of the alleged offence, I consider that a retrial is justified. I order a retrial before another magistrate.

Nazhat Shameem
JUDGE

At Suva
23rd April 2004