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State v Rokomaraivalu [2013] FJMC 190; Criminal Case 940.2009 (13 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 940/2009

STATE

-v-

LEONE ROKOMARAIVALU

PC Filipe Raymond for the prosecution
The accused appeared in person.

JUDGMENT

1] The accused is charged with following counts;

CHARGE:

FIRST COUNT

Statement of Offence [a]

BURGLARY: Contrary to Section 299 (a) of the Penal Code Act 17.

Particulars of Offence [b]

LEONE ROKOMARAIVALU on the 25th day of April 2009 at Nasinu in the Central Division by night broke and entered the dwelling house of Edwin Lal s/o Jay Lal with intent to commit a felony namely steal.

SECOND COUNT

Statement of Offence [a]

LARCENY IN DWELLING HOUSE TO A PROPERTY NOT LESS THAN TEN DOLLARS: Contrary to Section 270 (a) of the Penal Code Act 17.

Particulars of Offence [b]

LEONE ROKOMARAIVALU on the 25th day of April 2009 at Nasinu in the Central Division stole in the dwelling house of Edwin Lal s/o Jay Lal 2½ BH gross (10’s) valued $120.00 and about $200.00 cash a value amounting not less than ten dollars the property of Edwin Lal s/o Jay Lal.

2] He pleaded not guilty to the charge and trial heard on 22-03-2013 and 05-04-2013.

3] To prove this case the prosecution called following evidence. First they called PW1- Pushpa Wati. She said she is residing at 8 Miles Narere, Vatoa Road for 17 years Sir. She stays with her two sons Joseph and Edwin. On 25th day of April 2009, she stayed home with her sons and her daughter in law. She said “At night Sir, robbers entered into my house, I woke up. I was asleep, when I woke up I saw the robber, he was tall, he ran out of my house from the front door. The robber entered into my house and then he entered into my room. Then I woke up. When I saw him, he ran out of the room. But I could not recognize the face, I saw him from the back. I just knew it because he was the person who ran away from my house. And then I woke my sons and the robber ran away and my sons went to search for the robber. They couldn’t catch the thief. The robber ran away. Then we made a report to the Police. And I reported that they stole cash from my house, $200 and stole cigarettes from my house. 2½ gross Sir. The value of the gross was somewhere round $50.”

4] In cross examination she confirmed “I did not see the face, I just saw the back of the robber”.

5] The PW2 was Joseph Sushil Lal. He said “It was night, it was round half past 4 in the morning, I was asleep. My mother shouted then I woke up and saw 1 robber running. The robber ran towards the Government Barrack. I ran after him. I saw him from the back. I ran after him he ran towards the Government Barrack. Afterwards when I went for the stroll at around 6 o’clock, I found some change coins, cigarette buds”.

6] In cross examination the witness admitted that he could not catch the thief or he did not identify him. He said “I didn’t recognize him from the front but I saw him he was dark and he was shirtless.”

7] PW3 was witness Gangama. He said he resides in Narere 8 Miles for15, 20 years. He said his neighbor is the accused. His nickname is Laveni. The witness pointed out the accused and identified the accused in open court. The witness said “He came to me. He requested me give me $2. He offered me 1 packet of cigarette and in return $2. So I gave him $2. I took the cigarette and gave him $2. It was BH packet”. The witness said he sold the cigarette roll just to get bus fare to the hospital. In cross examination witness reiterated this.

8] PW4 was PC 3406 Basilio Tinolevu Gavidi. On 7th day of May 2009 he was on duty .On that date he received a report of burglary and theft from Vatoa Road which he proceeded then he attended to the report. Then, he gathered the information. He then interviewed the suspect Leone Rokomaraivalu. The accused statement is tendered as EX-1. In that statement he referred question 47. It was;

“Q: You mentioned in the statement that you stole 8 packets from the carpark at Nausori and now you mentioned that you sold one gross BH to one nani canteen, Soni’s mother, Narere, what can you say about that?

A: I lied about stealing the 8 packets from the car in Nausori. To tell the truth I broke into the house at Vatoa and stole 2½ gross of BH and $240 cash.”

9] In cross examination the accused suggested that he was induced by this witness which he denied it. The witness said that the accused was not forced, he was not ill-treated he was just normal on that day. He said he did not make him false. The witness said the accused was brought in for another case on that particular day that’s why he suspended the interview. He said the accused put alibi and he checked that with his wife. But she did not confirm his alibi.

10] The accused questioned the witness as follows;

“Witness I put it to you that my wife lied to you because we were having some family dispute that day, that’s why she told you one different story that I was not at home on that particular...

Witness I put it to you that you told me to admit the offence and the allegation and then you will not charge me? That’s not correct.

Witness why was I charged after 2 months? He was not charged at 2 months he was just charged during the time when he was remanded in the Police custody.

Witness I put it to you that you made me false promise? There was no such false promises made to this interview as the alibi was checked”

11] The prosecution closed its case thereafter. The court held there is a case to answer. The accused opted to give sworn evidence. DW-1, His testimony was “on the day of the incident I was at home and my wife was pregnant and the Police came home to arrest me and we were having some disputes between myself and my wife. Then the Police Officers arrest me and they took me up to Nasinu Police Station Sir where they were questioning me. And when we reach the Station I told them that I did not know anything about this allegation and I also did not commit this offence. Then they ask me where was I and I told them that I was at home with my wife who is pregnant. And when they went and check on my alibi which is my wife alibi witness and my wife lied to them. And I raise it with the interviewing officer that my wife is lying and just because of we were having a dispute that’s why she was lying to you. And it was half way they were taking my statement and they told me to admit the allegation and they will not charge me. And after 2 months when I was in Prison and they charge me. And at the beginning of my statement I told them that I did not commit this offence and I just want to inform Court this afternoon that I did not commit this offence.”

12] In cross examination the accused said he was with his wife at that night. But in wife statement to the police she said for 3 days he was missing from home. The accused said that she was lying. He further said he was induced to admit the offence. He was questioned;

“Could you explain to the Court inducement that was done to you? They told me that I had to admit to the offence and they will not charge me. And they will only charge me for the case for other cases which they have charged me so that I can plead guilty and I go to Prison.

So that is why you agreed to all that they said, that is the inducement that you have said? Yes Sir then I admit to the offence because they said that they will not charge me.

You have do you have any other cases apart from this one? Yes Sir. I have other pending cases.

Before this case you were brought in how many other cases did you ever come in for? 4 cases which I have already served”

13] The accused called another witness. He is Lepani Varani-DW2. He said he was locked up for bench warrant by Magistrate Alofa Seruvatu in Nasinu Police cell in 2009. He was in second cell. One person was locked up in the cell. That person was the accused. He then heard the police were saying to the accused it’s better for him to make things easy.

14] In cross examination the witness categorically said he was locked up in May 2009. He said it was probably between the 5th of May to the 6th May 2009.

15] I now evaluate the evidence. The PW1 and 2 confirmed that a robber entered their home and stole cash and cigarettes rolls. They saw the accused at the back therefore they did not identify the accused. The accused was later arrested and cautioned. Then he confessed all offences that he did. This offence is also in that. He admitted the committing of this offence in his caution interview which was tendered as EX-1. On the accused details Police questioned PW3 was witness Gan mama. Gan mama confirmed that the accused came to him and sold 1 packet of cigarette and in return he gave $2. He said “So I gave him $2. I took the cigarette and gave him $2. It was BH packet”.

16] The accused disputes his caution interview and he said that it was taken by induced. He said the officer made a promise not to charge for this offence so, he confessed. He did not say that he did not commit the offence. He says it was obtained on false promise; therefore it is not valid in law.

17] Normally, oppressive caution interviews are not valid in law. In Dickerson v US, [2000] USSC 59; 530 US 428, 435 (2000) court held “The coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements . . .”In Emmerson (1990) 92 Cr App R 284, a policeman who, three- quarters of the way through an interview, raises his voice and uses bad language may be ‘rude and discourteous’ but the court held the interrogator had not acted oppressively. But in this matter there was no oppression or coercion like that. The accused confessed to all offences but he may have thought this is a minor offence considering value of stolen property, he was misled by himself.

18] In Mitchell [1998] UKPC 1; [1998] AC 695, Lord Steyn pointed out; the decision on the admissibility of a confession after a voire dire is the sole responsibility of the judge. There is no logical reason why the jury should know about the decision of the judge. It is irrelevant to the consideration by the jury of the issues whether the confession was made and, if so, whether it is true. [I]n modern English practice the judge’s decision after a voire dire is never revealed to the jury. In this matter the court should hold the caution interview is valid in law. The accused was unrepresented and he did not request or put forward formal application, however, this court shall look that the validly of caution interview.

19] The accused confessed to all offences. It seems he was remorseful when he confessed. Lord Lane CJ’s judgment in Rennie (1982) 74 Cr App R 207 has discussed these types of issues. Lord Lane CJ said:

“Very few confessions are inspired solely by remorse. Often the motives of an accused person are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive . . . led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. That is not the law . . . commonly the presence of such a hope will, in part at least, owe its origin to something said or done . . . There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession. (at p 212)”( Emphasis is mine)

20] In his confession the accused firstly claimed alibi. The police checked his alibi got to know it is false. The accused’s wife statement tendered as EX-2 and it proves that the accused lied when he was interviewed. The accused called one Lepani Varani, who is a serving prisoner to prove that the confession was taken by induced. This witness heard the police were saying to the accused it’s better for him to make things easy. But this version did not tally with the accused version as he said police promised not to charge for this offence.

21] The accused first denied the charge by putting alibi. When it revealed to be false then he admitted the offence. The rule is, a lie uttered by the accused corroborates the prosecution, was clearly held in R. v Knight [1966] 1 All E.R. 647 and .R. v. Lucas (Ruth) [1981] 1 Q.B. 720. Thus, this strengthens the evidence of prosecution.

22] When considering the standard of proof in criminal case, in Miller v Minister of Pensions [1947] 2 All ER 372 is important. The standard of proof to convict the accused in a criminal case clearly discussed in that case by Lord Denning. He went on saying:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible but not in the least probable", the case is proved beyond reasonable doubt; nothing short will suffice."

23] In the light of the above principles, I hold the confession of the accused is admissible in the law. PW3 confirmed that the accused sold cigarettes and it supports prosecution case along with the confession. Therefore, I accept prosecution's version. I hold the prosecution has proved its case beyond reasonable doubt.

24] The accused is convicted as charge. I now call mitigation before sentencing.

25] 28 days to appeal

On 13th May 2013, at Nasinu, Fiji Islands.

Sumudu Premachandra
Resident Magistrate-Nasinu