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State v Lal [2013] FJMC 224; Criminal Case 155.2010 (3 June 2013)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON

NADI CRIMINAL CASE NO. 155 OF 2010

BETWEEN:

STATE

AND:

RONEEL VINEEL LAL

Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date : Monday 03 June, 2013

Appearances:
For The State : WPC Ana
For Accused : In Person

JUDGMENT

1. The Accused was charged with one count of Burglary as follows:-

Statement Of Offence

BURGLARY: Contrary to Section 312 (1) of the Crime Decree No. 44 of 2009

Particulars Of Offence

RONEEL VINEEL LAL between the 3rd day of February, 2010 and 4th day of February 2010, at Nadi in the Western Division entered into Korovuto College Office as a trespasser, with intent to steal a camera therein.

2. He pleaded Not Guilty to the charge as such the matter went on trial.

3. At trial, Prosecution called two civilian witnesses and 2 police witnesses in support of the charge. They are:-

4. The Prosecution marked and produced the Caution Interview of the Accused and the Charge Statement as P/ Exhibit 1 and 2 respectively.

5. PW1 who is the principal of the Korovuto College stated in evidence that on 03/04/10 when went to school he found that the office padlock was cut, door was broken and all items were scattered. When checked he noted only the Olympus camera was missing. He told the camera is valued at $599-00.

6. PW1 was neither cross-examined nor re-examined.

7. PW2 stated in evidence that that day he and Roneel went to the school which is near the Korovuto shop and came with a silver camera after an hour.

8. The Accused was defending by himself. His right to cross examination was explained to him by the Court. Then he cross examined the witnesses.

9. In cross examination PW2 stated that he was sitting in the shop behind the school. He answered 'by 11pm" to a question that what time we went to school.

10. PW3 gave evidence for Prosecution. He is the Investing Officer in this case. He interviewed the Accused in English language and made a record of the Caution Interview. He said original record of the Caution Interview was missing. He did not give the reason why it is missing. However, he was able to produce photo copy of the record of the Caution Interview. He further told that the Caution Interview was taken voluntarily and no force or threat or inducement used in order to get the Accused's statement.

11. In cross examination PW3 stated that he took the Accused to various places with the view to reconstruct the scene of the incident. He also stated he did not take the Accused to hospital for medical examination.

12. PW4 is a Charging Officer. He recorded the Charge Statement of the Accused. He produced the Charge Statement of the Accused marked as P/Exhibit 2. He said he had no knowledge of any complaint of assault.

13. The Accused's right to give sworn evidence or his right to remain silent under common law was explained to him. He opted to give sworn evidence.

14. The Accused stated in evidence that PW2 was telling lie in Court and he denied the charge.

15. On 15/02/10 the Accused was charged with one count of burglary contrary to Section 312(1) of Crimes Decree 2009.

16. The charging section states that:-

"Section 312 (1) – A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building".

17. Accordingly the Prosecution must prove the following elements beyond reasonable doubt:-

(i) the Accused, Roneel Vineel Lal;
(ii) entered or remained in Korovuto College Office as a trespasser;
(iii) with intent to steal a camera in the said office.

18. PW2 stated the Accused went to the Korovuto College Office after drinking grog. The Accused took him (PW2) for grog drinking. The Accused has been identified by recognition. It is worthy to note that identity of the Accused was not disputed.

19. PW1 in evidence stated that when he went to school office, he found that padlock was cut, door open and an Olympus silver camera was missing. He also, told that all items were scattered. PW1 was never cross examined by the Accused.

20. PW2 stated in evidence that the Accused went to Korovuto College office while he was waiting at the Korovuto shop behind the school and came after an hour with a silver colour camera.

21. In cross examination the Accused questioned that what time we went to the school. To this question PW2 answered "by 11pm". By asking this question the Accused has revealed that he entered the college office on that day. He could not have asked such question if he had not entered the school office.

22. The record of caution interview (P/Exhibit 1) and the Charge Statement of the Accused (P/Exhibit 2) were produced by the Prosecution wherein the Accused had admitted committing the offence. The Prosecution failed to produce original record of the Caution Interview. PW3 stated in evidence that the original of the Caution Interview missing.

23. In my view Prosecution has failed to form foundation to produce photo copy of the Caution Interview of the Accused. I therefore ignore the Caution Interview and the Charge Statement of the Accused.

24. PW2 gave straight forward evidence that the Accused went to school and came with a silver camera after some time. PW1 stated that when he checked the office he found that only the Olympus camera missing.

25. PW1 and PW2 gave clear evidence for the Prosecution. He was consistent in his evidence. Their evidence was credible.

26. The Accused had cut opened padlock of the school office, entered and stole a camera therein.

27. The Accused in evidence stated that PW2 was telling lie in Court denying the allegation which I cannot accept.

28. In my judgment the Prosecution was able to prove each one of the elements of the charge beyond reasonable doubt. I therefore find the Accused Guilty to the charge of burglary contrary to Section 312 (1) of the Crimes Decree 2009. I convict him accordingly.

Dated at Nadi this 03rd day of June 2013.

.............................................

M. H. Mohamed Ajmeer

Resident Magistrate