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State v Raqio [2010] FJMC 129; Criminal Case 482 of 2009 (22 October 2010)

IN THE MAGISTRATE'S COURT
AT LAUTOKA

Criminal Case No 482/09

BETWEEN

THE STATE

AND

KAMINIELI RAQIO

JUDGEMENT

1. The accused is charged with one count of " being found by night in possession of house breaking implements" and one count of "resisting arrest". The statements of offence and the particulars of offence are as follows;
   

First count

Statement of offence

Being found by night in possession of house breaking implements contrary to section 303(b) of the Penal code.

Particulars of offence

Kaminieli Raqio on the 13th day of October 2009 at shiu Raj street, Lautoka in the western division was found by night, in possession of house breaking implements, namely screwdriver and plies without lawful excuse.

Second count

Statement of offence

Resisting arrest contrary to section 247(b) of the Penal Code

Particulars of offence

Kaminieli Raqio on the 13th day of October 2009 at shiu Raj street Lautoka in the western division resisted Police constable Number 3952 Senitiki whilst effecting arrest in the due execution of his duty.

BACK GROUND

2. The accused was arrested on the 13th October 2009. He was charged on the 16th October 2009. Initially the accused opted for legal aid. However on the 23rd June 2010 the Legal Aid Counsel informed court that the Legal Aid does not appear for him in this case. On the 07th July 2010 the accused informed court that he waives his right to counsel. The case was taken up for hearing on the 22nd September 2010.
   
3. At the beginning of the hearing the prosecution sought to tender the caution interview of the accused without calling the officer who recorded the same. The accused was inquired as to whether he has any objection or whether he disputes the caution interview. The accused informed court that he does not have any objection. Thus the prosecution was allowed to tender the caution interview of the accused as evidence. Later the prosecution called two Police Officers and closed the prosecution case. The court held that there is a case made out against the accused by the prosecution for the accused to reply. The charge was again read out to the accused and the accused was explained his right to give evidence, to call witnesses or to remain silent. The accused opted to give evidence. Apart from the accused's evidence no other witnesses were called for the defense. The case was then fixed for judgment.
   

THE LAW

4. Section 303 (b) of the Penal Code reads as follows;
   

"Any person who is found by night-

(b) having in his possession without lawful excuse (the proof whereof shall lie on such person) any key, picklock, crow, jack, bit or other implement of housebreaking;

is guilty of a misdemeanour, and is liable-

(i) if he has been previously convicted of any such misdemeanour or of any felony, to imprisonment for ten years; and

(ii) in all other cases to imprisonment for five years"

5. Section 247(b) of the Penal code reads as follows;
   

"Any person who assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer; is guilty of a misdemeanour, and is liable to imprisonment for five years."

ANALYSIS

6. First I will deal with the admissibility of the caution interview. At the commencement of the hearing he consented to the application made by the prosecution to tender the caution interview without calling the officer who recorded it. But later when the accused gave evidence he said he was brutally assaulted by the Police officers. He tendered a medical report to support his allegation. According to the history given by the accused in the medical report, it states that the accused was assaulted by five Police officers. The findings of the medical report confirm injuries caused by blunt trauma. When the accused was cross examined he admitted that he was assaulted only at the arrest and what he said at the caution interview is correct. The following are some excerpts of the cross examination;
   

Q: Did you make the caution interview voluntarily?

A: Yes. But I was assaulted at the arrest.

Q: You were assaulted at the scene only?

A: Yes

Q: You gave the caution statement voluntarily?

A: Yes

7. The accused had been medically examined on the 17th October 2009. He was arrested on the 13th and the caution interview is recorded on the 14th October 2009 at 5.30 pm. He was produced to court on the 16th. It appears the accused had been detained in Police custody from 8 .00 pm on 13th October to 16th until he was produced before court. But no explanation was tendered by any of the witnesses called by the prosecution regarding the prolonged detention in Police custody.
   
8. The accused initially informed court that he applied for legal aid but he later waived his right to counsel. The accused was unrepresented during the hearing. He consented to the application by the prosecution as an unrepresented accused. I am not quite convinced that the accused consented to the application made by the prosecution with any idea of legal implications that could follow it. The accused is a lay person and nothing suggests that he is acquainted with legal issues of this nature.
   
9. In any event the court has to be satisfied about the voluntariness of a statement before considering it as admissible evidence. It should be noted that the mere consent by an unrepresented accused for the production of a caution interview will not obviate the duty expected from a court to be satisfied about the voluntariness of such a statement. Justice Nazhat Shameem in Safiq V State [2001] FJHC 9; Haa0006j.2001s (7 March 2001) stated;
   

"The test for admissibility of confessions is applied in the High Court after a trial within a trial. The Magistrate who has to consider both admissibility and weight together must adopt a two-step process on confessions. He or she must first ask: Is this confession admissible? In considering this question, the Magistrate must direct himself/herself on the burden and standard of proof on the admissibility of confessions.

The second step is whether, if the Magistrate is satisfied beyond reasonable doubt, that the confession was a voluntary one, and not obtained by oppression, the contents of the interview are true and can be relied on for the purpose of the trial."

10. In the backdrop of a prolonged detention and an allegation of assaults supported by medical evidence, I do not think the mere consent by an unrepresented accused would replace the tests that a Magistrate should adopt with regard to admissibility of confessions. I think the cumulative effect of assault and prolonged detention would amount to nothing less than oppression although the accused admitted that he was only assaulted at the arrest. For the above reasons I do not think that this court can be satisfied, beyond reasonable doubt, about the voluntariness of the caution interview. Thus I decide to disregard the caution interview.
    
11. According to the evidence led by the prosecution the alleged incident took place on the 13th October 2009 at about 8.00 pm at Shiu Raj Street. Both the witnesses of the prosecution identified the accused. The accused did not dispute the date, time and the place of the incident. The identity of the accused was also not in dispute. Thus I am satisfied that the prosecution proved those ingredients which are common to both counts, beyond reasonable doubt.
    
12. The first count against the accused is being found by night in possession of house breaking implements. The two Police witnesses called by the prosecution corroborated each others evidence by saying that the accused was in possession of a screwdriver and plies. The accused too admitted that he was in possession of the said screwdriver and plies. There was no dispute regarding the possession. The first witness of the prosecution, PC3176 Misidomo Basesi said that the screwdriver was in accused's hand.
    
13. As far as this offence is concerned the main ingredient, the prosecution has to prove is that the accused was in possession of those tools without "lawful excuse". In this case I am satisfied that the prosecution proved beyond reasonable doubt that the accused was in possession of the particular tools. According to Section 303(b) the burden of proof is on the accused to prove the lawful excuse. However the standard of proof for the accused to prove the lawful excuse is on balance of probability.
    
14. The accused while giving evidence said that the tools which were in his possession were his tools. This was confirmed by PC3176 Misidomo Basesi. He said that the accused told him that those are his tools when he was arrested. The accused further said that those were the tools he uses for his carpentry work. The accused said that one of his friends borrowed them and he went to get them from his friend that day. He said he is a qualified carpenter. The accused tendered a certificate issued from the National Trade Testing advisory Committee to bolster his claim. According to the document the accused has passed the practical and theoretical written test for the trade of "Carpenter general".
    
15. The accused was arrested at about 8.00 pm on a Street. The accused asked from P.C. 3952 Senetiki during the cross examination whether he was arrested close to his house. However the prosecution witness neither admitted nor denied the suggestion. Instead he gave an irrelevant answer as follows;
    

Q: You said I look suspicious. But I put to you I was close to my house and was in my area?

A: He was suspicious and when he was arrested those tools were found.

16. The accused was able to create a doubt as to whether he was arrested close to his house around 8.00 in the night. Further the Same witness said that the accused was holding the screwdriver before he was arrested. It does not appear that the accused was trying to hide the screwdriver. Only the pliers had been in his pockets. Although the prosecution witnesses said that the tools can be used as house breaking implements nothing supports this contention for the court to draw such an inference.
    
17. I am satisfied that the accused was successful in proving on balance of probability a lawful excuse to be in possession of those tools being a qualified carpenter. In the circumstances I decide that the prosecution failed to prove the first count beyond reasonable doubt.
    
18. The second count against the accused is resisting arrest. P.C. 3952 Senetiki gave evidence in the following manner;
    

"They came in a suspicious manner. He was with another. He ran away. We arrested this accused when he tried to escape. He resisted arrest while we were trying to arrest him. He ran and resisted arrest. He had a screw driver in one of his hands. He tried to flee by showing that.

PC Basesei and PC Rupeni assisted me to arrest him"

19. P.C. 3176 Misidomo Basesei corroborated the evidence of PC senetiki. He said;
    

"We all gave chase when he ran. PC Senetiki managed to grab him. He struggled with myself and another officer when we went to assist Senetiki. He was showing the screwdriver to the approaching officer. With our assistance he was arrested. He was resisting arrest."

20. The accused cross examined both witness. But his only contention was that he did not hurt the officers with the screwdriver. It has to be noted that the charge against the accused is not assaulting a Police Officer but resisting arrest. PC Misidomo Basesei answered in the following manner during the cross examination by the accused;
    

Q: Did I hurt any of the officers?

A: No

Q: Is there any proof to say I hurt any Police Officer during arrest?

A: He did not hurt . But it took 4 officers to arrest and he tried to run away even after he was put in to the vehicle.

21. The accused did not deny the second charge when he gave evidence. He only said;
    

" With regard to the second count I want to say I was brutally assaulted by the Police. I ended up in the Hospital."

22. The prosecution witnesses said that when they were on Patrol duty the accused was with another person and they looked suspicious. The accused had tried to run away when the officers stop the vehicle and tried to search him. I am satisfied that the Police Officers tried to search the accused in the due execution of the duty. The prosecution witnesses corroborated each others evidence saying that the accused resisted arrest by trying to run away by showing a screwdriver to PC Senetiki.
    
23. The accused could not create a doubt regarding the second count or he could not challenge the credibility of the prosecution witnesses. In the circumstances I am satisfied that the prosecution proved all the elements of the second count beyond reasonable doubt.
    
24. Accordingly I acquit the accused from the first count. I find him guilty for the second count and convict him as charged for the second count.
    

28 days to appeal

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
22.10.2010