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State v Waqa [2010] FJMC 161; Criminal Case 1232.2008 (10 August 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1232 of 2008

STATE

V

MANASA WAQA

For Prosecution: Ms. Low P. (DPP Office)
Accused: Present in Person
Date of Judgment: 10th August 2010

JUDGMENT

1. Accused in this case is charged for committing Burglary an offence punishable under sec. 299 (a) and Larceny from a Dwelling House of Property to a Value Amounting to not Less than ten dollars an offence punishable under sec. 270 (a) of the Penal Code, Cap 17.
   
2. Four witnesses testified for the prosecution. At the end of the prosecution accused gave evidence on oath.
   
3. Prosecution is under obligation to prove the charges beyond reasonable doubt and the accused has to establish his defence on the balance of probabilities.
   

Elements to be proved by the prosecution

4. a). Burglary
   1. The accused,
   2. Broke and entered the dwelling house of another and committed a felony in that dwelling house
      

b). Larceny from a Dwelling House of Property to a Value Amounting to not Less than ten dollars

1. The accused took and carried away something capable of stolen.
2. Without the consent of the owner.
3. At the time of such taking, intended to permanently deprive the owner.
4. Value of the stolen item is more than $ 10.
   

Evidence of each witness
PW – 1

5. Witness had been awakened by her daughter, who informed the witness that the louvre blades of the house had been broken and her hand bag is missing. After informing the husband about the break-in, the witness had made a search and had found that hers and her husband's mobile phones were missing. Amongst the missing items were her husband's wallet with bank cards and money and a pair of canvass.
   
6. According to the witness she had gone into sleeping at 0410 am in the morning and awaken by the daughter at about 0630 am. She had not witnessed the break-in but assumed that it had happened between those hours whilst she was sleeping. Witness identified her husband's pair of canvass in the Court and during the cross-examination informed that it had been brought to her by a police officer on 06th July 2008.
   

PW -2

7. Witness was the officer who had conducted the caution interview and informed the Court that the accused denied the allegation.
   

PW- 3

8. Witness was the officer who charged the accused.
   

PW - 4

9. On 03rd July 2008 witness was attached to Police Dog Unit at Nasese and had received instructions to assist Samabula police officers about a house breaking. Around 4 a.m. witness with another police officer had gone straight into the crime scene situated at no. 25 Amputch road and from that place had followed the track inside the jungle with the help of the dog.
   
10. During the journey witness had found two people hiding inside a bush. One of them had been identified as the accused and when the officers had shone the torch both of them had fled the scene. However, again the dog had led them to the Manasa Waqa's home.
    
11. Accused lengthily cross-examined the witness and inquired as to how the witness identified the suspect by the name. Witness informed the court that he got the name from the officers of the Samabula police station.
    
12. Whilst facing the cross-examination, the witness informed court that the bush in which the suspects were hiding was on a slope and when shone the torch they threw items at the witness. Since the witness was trying to secure the recoveries and the slope was slippery witness could not catch the suspects when they were fleeing from the scene. According to the witness, the accused was wearing the canvass and armed with a cane knife and a pinch bar.
    
13. Witness admitted the fact that he gave his statement 03 days after the incident but vehemently denied the fact that it was a fabricated story.
    
14. At the end of the prosecution case, accused opted to give evidence on oath.
    
15. According to the accused that he was in the town on the day in question and was drinking at one night club with his friends. After that he has gone to Toorak to complete drinking and slept at that place till next day morning. After he got up had come home by a taxi and had stayed in home the whole day. When he retuned from Toorak, his mother had informed him that Police was in his house.
    
16. Next day Police had visited him again and asked him about two incidents happened in two different places, one at Amputch road and the other at Petri road.
    
17. According to the accused, the recovered canvass was a production of Petri road case which was CF 1232 of 2008, and he had been already charged for the incident happened at Amputch road case.
    
18. During the cross-examination, accused failed to give the names of the friends he was with on that particular day and admitted the fact that he has breached the curfew order imposed by the Court.
    

Analysis and Findings

19. This particular case is based on the circumstantial evidence and evidence of first three prosecution witnesses did not indicate any involvement of the accused.
    
20. It was the evidence of the fourth prosecution witness implicates the accused person's role in this particular case. According to the PW-4, they have found the accused with the aid of the police dog. According to PW-4 the crime scene was at the Amputch road, Namadi.
    
21. According to the charge statement, which had been marked as PE-3, place of the incident was at Petri road.
    
22. According to the PW-1, she was living at Petri road.
    
23. Therefore, it is very clear that the complainant and the PW-4 were talking about two different places.
    
24. Accused raised that point whilst he was giving evidence in Court.
    
25. Another fact which drew the attention of the Court is the time of the commission of the offence. According to the PW-1, the incident had taken place between 0410 am and 0630 am in the morning and according to the PW-4, they have found the accused around 0400 am.
    
26. PW-4 had been summoned to the crime scene by Samabula police and at the time he received instructions he was at Nasese police dog's unit.
    
27. According to PW-1 she had got up after 0630 a.m. After searching the house she had informed the incident to her husband. Therefore, it is obvious that there is no way the incident could have been reported to the Samabula police before 6.30 a.m. According to the charge sheet alleged crime had taken place on 03rd July 2008 and according to PW-4, he was called to help Samabula police on the same day.
    
28. However, according to the PW-1, alleged incident had happened on 21st June 2008.
    
29. Therefore, it is clear that the prosecution's evidence in this case does not make any sense.
    
30. Considering the glaring discrepancies revealed in the prosecution's case, I proceed to acquit the accused from all charges.
    

On this Tuesday the 10th day of August 2010

Kaweendra Nanayakkara
Resident Magistrate