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State v Batigai [2009] FJMC 19; Criminal Case 174.2009 (23 September 2009)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 174 of 2009

STATE

V

MOAPE BATIGAI

BEFORE: MR. C LAKSHMAN
Resident Magistrate

For Prosecutor: Inspector Ali
Accused: Present

JUDGMENT

The accused is charged with Shop Breaking Entering and Larceny, contrary to Section 300 (a) of the Penal Code (Cap 17).

The particulars of the offence are as follows:

“Joseva Rasalato Radaveta and Moape Batigai on the 20th day of March 2009 at Brown Lane, Nausori Town in the Central Division broke into the Ramesh Barber Shop and stole from therein 7 wrist watches valued at $176.00 the property of Praveen Bhai”

The 1st accused pleaded guilty on 24th March 2009 and was sentenced to 6 months imprisonment and suspended for 3 years.

The onus of proving the charge is on the prosecution. It is for the prosecution to prove that the accused committed the offence beyond reasonable doubt and that:

(i). the accused, with others,

(ii). Broke into the complainants store and stole,

(iii). items belonging to the complainant,

The complainant’s statement to the police, the accused’s interview notes and the charge sheet were all tendered with the accused’s consent.

The prosecution first witness was Constable Elia (PW-1) gave sworn evidence and in examination in chief stated the following:

“ – he was at Nausori Police Station for 4 years.

- On 20th March 2009 was on duty at night assigned to road block at Rewa Bridge.

- At 2am I was in town after road block.

- I saw something unusual.

- I was coming through Gulam Nabi Street to head towards Dolphins. I saw someone outside - Ramesh Barber Shop holding someone else’s leg, the other person was already inside the shop.

- I approached them I came and saw the glass door was broken. Moape was outside. Joseva was inside the shop.

- I told Moape to keep still. He pushed me. I pushed him back. Joseva tried to come out thorugh the same glass and I then told Joseva not to come out when I was talking to Joseva, Moape fled.

- Moape held Joseva’s thighs to help him go inside the broken glass.

- At first, I only saw one face only Moape.

- At first I saw three legs.

- The person I saw whose only leg was outside had one leg inside the shop.

- Moape was standing outside and helping Joseva go inside the shop.”

PW-1 pointed out the accused in the witness box as Moape whom he had seen that night.

PW-1 further stated as follows:

“- I know accused since I joined the force 4 years ago.

- He is well known criminal and he sells food parcels in Nausori Town with his wife.

- Outside the shop there was light. I was beside the light.”

In cross examination PW-1 stated as follows:

“Q: on 20th day at 2.15am mentioned, the person Moape Batigai, you stated where was he?

A: you were inside ramesh barber shop.

Q: there are 3 statements you have given. One soon after the incident. 1st on 20th March 2009, 2nd on 2nd April 2009 and 3rd on 2nd July 2009. Witness you gave 3 statements are all true and correct even if the date is different?

A: yes.

Q: statements are different?

A: no

PW-1’s other responses in cross examination was as follows:

“- on my way to them it was 7-8 metres. I can clearly see him. He was holding the leg. When I reached them he was staring inside. Joseva was already inside.

- Moape Batigai was the person who helped Joseva go in.

- Can Id Moape he has done EMP.”

“Q: year.

A: cannot recall

Q: I never went for EMP, you are lying?

A: accused was EMP at Nausori Police Station. I am not lying.

Q: The item stolen who was it seized from?

A: I was not the arresting officer and I did not conduct search.

Q: Was with my wife when I was arrested?

A: the accused was arrested after he ran away from the scene. When I arrested he was with his wife. I ID accused at scene and arrested him later as I knew him. No other witness to the crime. Cannot recall what accused wore.

There was re-examination.

At the close of the prosecution case the Court ruled that there was a case to answer and the accused was informed of his rights. The accused who was not represented was told that he had the right to present his witnesses. The accused was further informed that he had the right under section 211 of the CPC:

a). to give sworn evidence where he will be liable to cross examination.

b). to make a statement not on oath from the dock

c). right to remain silent (no adverse reference will be drawn).

The accused gave sworn evidence and told the court the following:

“On that particular day I was with my wife selling Barbeque. A teacher in Sawani came that day he also had some debts to pay. He paid the debt and we had some drinks (the school teacher and I). We were drinking at Whistling Duck Night Club. My wife came and told me that the produce we had brought was sold and we had to go.

Both the tables we were working from were on the back road. We walked to the Mobil Service Station waiting for a taxi when the police vehicle arrived and they took me and asked questions. They also told my wife that they had to take me to station to interview.”

In cross examination the accused stated that he told the story he told the court and that he did not recall if he was at the scene. The prosecution further put to the accused that “a police officer saw you ran away from the shop. What can you say about this? The accused responded “no, I did not go to the place where break in took place.”

Upon further cross examination by prosecution that “the place where you sell barbeque will you go past shop broken into?. The accused responded “no”. The prosecution also put to the accused that accused one stated in his statement that “Sti ran away and Moape just stood there”. In response the accused stated that the statement by Jo is false. Jo also stated other names.

The accused’s other witness was his wife, Alisi Ranadi. She told the Court the following:

“ - on 20th March 2009 accused was with me selling food.

- A school teacher, master Miti (at Dilkusha) came to see accused. They went to Whistling - Duck. After selling the produce I went to call Moape from Whistling Duck to go home from the back road.

- We ended up at the Mobil Service Station. One police vehicle came and got hold of the accused and threw him into the police vehicle.

- The accused did nothing.”

In cross examination the prosecution asked the defence witness the following:

“Q: when accused was arrested at Mobil Service station how many people were here?

A: not more than 20.

Q: from where you sell food, which road you follow?

A: back road, back of main town.

Q: for how long accused was not with you?

A: about 2 hours.

Q: If accused broke into shop while he was away will you be aware?

A: No.

Q: from the place you selling to the Whistling Duck if accused goes out will you know?

A: no”

There was no re-examination of the defence witness.

The Issues

The court notes that the main issues for consideration in this case are the following:

(a) identification

(b) break in and entry.

(c) credibility of the witnesses – whom the Court believes

Identification

This Court takes note of the identification guidelines, as set out in R v Turnbull & Anor [1976] 3 All ER 549 (CA),

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition [the judge] should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, [the judge] should remind the jury of any specific weaknesses which had appeared in the identification evidence:” at 551-52, per Lord Widgery CJ

This court notes the guidelines set in Turnbull and in particular the following questions: (a) How long did the witness have the accused under observation? (b) At what distance? (c) In what light? (d) Was the observation impeded in any way, as for example by passing traffic or a press of people?) (e)Had the witness ever seen the accused before? (f) How often? (g) If only occasionally, had he any special reason for remembering the accused? (h) How long elapsed between the original observation and the subsequent identification to the police? (i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(a) How long did the witness have the accused under observation?

From the PW-1’s evidence he saw the 2nd accused (Moape) first. PW-1 also saw the accused when he was 7-8 metres away from him. When the witness reached the accused then he saw one accused (Joseva) was inside. The witness as per his evidence in Court saw the accused for some time to positively identify him. It was not a fleeting glance or a momentary view.

(b) At what distance?

The evidence of the witness was that he first saw the accused from 7-8 metres and later when he was close by when the accused pushed him and then the witness pushed him.

(c) In what light?

The light outside the shop was on. The witness had clear view of the accused.

(d) Was the observation impeded in any way, as for example by passing traffic or a press of people?)

No, the witnesses view was not obstructed in any way. The witness had clear view of the accused.

(e) Had the witness ever seen the accused before?

The witness has seen the accused before at the scene. The witness later apprehended the accused not to too distant place from the scene of the crime.

(f) How often?

According to the witnesses testimony he knows the accused as accused sells food in town and was known.

(g) If only occasionally, had he any special reason for remembering the accused?

This question is not applicable.

(h) How long elapsed between the original observation and the subsequent identification to the police?

The witness apprehended the accused some moments later after the break in.

(i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

There does not seem to be any material discrepancies in the description given by the witness when he first saw accused and his actual appearance.

(j) Are there any specific weaknesses appearing in the identification evidence?

The most pronounced issue here is the identification of someone known to the complainant, and linking this person, by reason of that knowledge, back to an offence. The court warns itself of this possibility and judging from the evidence of the witness he clearly identifies the accused and knows the accused for a considerable period of time. He would not make a fatal mistake of not being able to identifying someone he knows for some time.

(k) The circumstances in which the identification by the witness came to be made are crucial

The accused was indentified not too distant from the scene of the alleged crime.

The evidence of the witness as to the identification fulfils the criterion laid down in Turnbull. The court is of the view that the accused was properly indentified by the witness using the Turnbull guidelines.

Breaking Entry and Larceny

The evidence of the witness is that accused on trial assisted the 1st accused in entering the shop when he first saw accuseds. The accused was holding the thigh of the other accused to assist him in the crime. According to the witness Moape was half inside the shop when he was assisting the 1st accused gain entry into the shop. The glass of the shop was broken. The Court also heard evidence that the witness from some distance saw the accused assist the 1st accused enter the shop. When the witness came closer the 1st accused was inside and the 2nd accused outside. Later the accused fled from the scene.

The issue on this element is whether the accused breaking entry and larceny. Section 21 (1) of the Penal Code (Cap 17) provides that:

“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offences;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.”

In, State v Deo [2008] FJHC 216; HAA026J.2008 (12 September 2008), Justice Shameem stated that “Section 21 of the Penal Code does not define what constitutes an aiding and abetting. However the common law does. An aider and abetter must share the same mens rea as the principal offender (Abendra Kumar, Manoa Naqase and Sivorosi Raikali v. R [1987] SPLR 131), or must at the very least know what the principal offender intends to do, and act with the intention of assisting him/her (Sheik M. Hussein v. State [2001] AAU0032/98 and State v. Prakash Chetty [2001 AAU0034/98)."

A person can be guilty of an offence committed by another is defined by our Section 22 of the Penal Code as follows:

"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."

Applied to the present charge it means that if the accused formed a common intention to commit the breaking entry and larceny with other persons and it was the probable consequence of committing breaking entry and larceny that the victim had his goods stolen, then each of the people participating would be equally responsible for that breaking entry and larceny.

In summary therefore, if the accused is proved to have been one of the those persons present and participating in breaking entry and larceny - and only if this is proved, then there are two ways that he could be responsible for the breaking entry and larceny by the others and be guilty of the offence of breaking entry and larceny.

The court finds that the accused aided and abetted the others with him in break in and larceny the items as per the charge sheet goods belonging to the complainant. He was present at the time of the commission of the offence and he assisted the others with him. The accused formed a common intention with others to breaking entry and larceny and steal the goods of the complainant and he is therefore deemed to have committed the offence he is charged with.

Credibility of the Witnesses

The court noted the demeanor of the prosecution witness and the accused and his witness.

The court believes the prosecution witness as his evidence is credible and has withstood cross examination. The Court finds that the witness has no reason to implicate the accused. The witness has positively identified the accused moments after seeing him at the scene of the crime.

The court finds that the prosecution has proved the elements of the offence the accused is charged with and the court believes beyond reasonable doubt that the accused committed the offence he is charged with.

The court finds the accused guilty of the offence that he is charged with. The accused is convicted accordingly.

Chaitanya Lakshman
RESIDENT MAGISTRATE
NAUSORI

23/09/09