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State v Nakuta [2011] FJMC 141; Criminal Case 1328.2006 (10 November 2011)

IN THE MAGISTRATES COURT OF FIJI
WESTERN DIVISION AT NADI

CRIMINAL CASE NO.1328/2006

STATE

V

JOPE NAKUTA

Cpl. Naidu for prosecution
Accused in person
Judgment: 10.11.2011

JUDGMENT

THE accused was charged as follows:

FIRST COUNT

Statement of Offence (a)

ROBBERY: contrary to section 293 (2) of the Penal Code Cap 17.

Particulars of Offence (b)

JOPE NAKUTA on the 9th day of September 2006 at Nadi in the Western Division robbed one NELESH CHANDRA of a Nokia mobile phone valued at $100.00 and cash $2.00, the property of the said NILSESH CHANDRA.

SECOND COUNT

Statement of Offence (a)

BURGLARY: Contrary to section 299 of the Penal Code Cap 17.

Particulars of Offence (b)

JOPE NAKUTA in the night of 9th day of September 2009 at Nadi in the Western Division did break and enter into the dwelling house of TERRY ALLEN with intent to commit a felony namely larceny.

THIRD COUNT

Statement of Offence (a)

LARCENY FROM DWELLING HOUSE: Contrary to section 270 (a) of the Penal Code Cap 17.

Particulars of Offence (b)

JOPE NAKUTA on the 9th day of September 2006 at Nadi in the Western Division stole from the dwelling house of TERRY ALLEN a safe with cash $14,880.00, a Panasonic TV screen valued at $850.00, a Dell laptop computer valued 3000.00 and assorted gold jewelleries valued $850.00 all to the total value of $19,580.00.

The accused pleaded not guilty to all charges.

At trial, the prosecution called five witnesses namely, Terry Allen (PW1), Nilesh Chandra (PW2), Samisoni Vavudali (PW3), PC Vito (PW4) and PC Elic Mocceer (PW5)
PW1 gave sworn evidence and stated that on 9 September 2009 after 9.00pm left home to a restaurant then he received a call from Nadi Police saying that his house has been broken into. He told he did not know who had done this. He further told the items mentioned in the charge were missing.

PW1 was neither cross examined nor re-examined.

Then PW2 (security guard for the complainant) gave sworn evidence. He in his evidence stated that around 10pm on 09.09.2006 when he was standing one Fijian boy came and pulled him and closed his mouth with his hand. He also said that he (Fijian boy) took him to the other side and one person sat on him and tied his hand and took his mobile phone. He further told that that day three people came and others were breaking the house but he could not recognize them. PW2 identified the accused in court as the person who was sitting on him.

Under Cross Examination PW2 confirmed that he stated in the statement to police that he could not identify any of them as he was blindfolded. He also confirmed that he knew the accused name through police.

In Re-Examination PW2 stated that he did not see the accused before the incident and he was in state of excitement when giving the statement. He also stated that what he says in court is true.
PW3 gave evidence for the prosecution. He sated in evidence that on 10.09.2006 he met the accused at Khan's Service Station. He invited him for a drink and he went with him straight to Suva. He also said that the accused bought a beer and he didn't give $500.00. PW3 stated that he was threatened to give statement and forced him to sign. He further told that they (CID) said 'they will put chillies if I don't sign the statement'.

PW3 was neither cross examined nor re-examined.

Next witness was PC Vito-PW4. He told in examination in chief that he assisted the investigation in this case and he was there when other officers make arrest of the accused at his house. He also said that the accused was interviewed by Mr. Ellic in the Crime Office. He further said that he was present during the interview and the accused was not assaulted, no promise or inducement was given.

In Cross Examination PW4 denied taking the accused to Molomolo and assaulting the accused at any time.

In Re-Examination he stated that he was not the Charging Officer and he did not know why the accused was charged.

Finally PW5 Elic Mocceer the Investigating Officer testified that he interviewed the accused under caution on 06.12.2006 and made record of it. He said he recorded the caution interview after giving the accused all his rights. He also said that the accused admitted the allegations when he put to him.

Prosecution attempted to tender the caution interview as exhibit through this witness but the accused objected to the caution interview being tendered at this stage without any notification to him previously. The upheld his objection and refuse permission to mark and tender the caution interview as evidence.

After the prosecution closed its case, the court explained to the accused his rights and he opted to give unsworn evidence.

The accused in his evidence stated that he was arrested in Suva and brought to police station. He said they threatened him and put chilli powder in his private part after making him naked. He also told that police took him to Mulomulo and Sebeto police stations and they finally brought him to Nadi police station on the third day and allowed to see his family member.
It is to be noted that the prosecution heavily rely on the evidence of the PW2 who was security guarding the house of the complainant Mr. Terry Allen, PW1 who was not at home at the time of robbery. The complainant came after the incident. He described in court the items that were missing after the robbery.

PW2 when giving evidence in court sated that one of three persons that had come to robbed blindfolded him. Later he said that they half blindfolded so that he was able to recognize the accused and indentified him as one of the three persons who robbed he house that night. He said he did not know the accused previously and police told him he is Nakuta (accused). For the first time he identified the accused in court. To my surprise, this witness did not make statement that he can identify one of three persons who robbed the house that night. There is nothing in his statement that he can identify the accused. This was confirmed by the prosecution. No identification parade was held in the police station. PW2 in his evidence stated that he identified the accused as he was half blindfolded. PW2 gave completely different evidence from that of his statement to police. I therefore can place little reliance on the evidence of PW2.
At trial, the prosecution attempted to tender as evidence the caution interview of the accused wherein he had admitted the allegations. This was objected to by the accused on the basis that this not obtained voluntarily.

The accused was unrepresented by a counsel. When the accused was unrepresented caution interview cannot be tendered as evidence without a voir dire inquiry. Voir dire inquiry is mandatory where the accused is unrepresented by a counsel. In the case such inquiry was not conducted. Further the prosecution did not give notice to the accused that they will be relying on the caution interview previously. For these grounds the court refused permission to tender and mark the caution interview.

Thus the prosecution has failed to prove the charges against the accused beyond reasonable doubts.

I therefore acquit the accused from all three counts.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi on this 10th day of November 2011