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State v Kapawai [2014] FJMC 157; Criminal Case 1382.2013 (25 November 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1382/13

State

V

Tevita Kapawai

Prosecution: Cpl Viliame
Accused: Present – Ms Kean (Legal Aid Commission)

Judgment

Introduction
Tevita Kapawai was charged with theft, contrary to Section 291 of the Crimes Decree 2009.

The Particulars of Alleged Offence is that:

"Tevita Kapawai on the 9th day of August 2013 at Suva in the Central Division dishonestly appropriated (stole) 1 x Outboard Engine (40 Horsepower) Yamaha Brand valued at $7800.00 the property of Livai Toribau."

The Standard and Burden of Proof
The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "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 doubt. The law would fail to protect the community if it admitted 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, but nothing short of that will suffice."

The Evidence
The prosecution called 3 witnesses. The accused gave sworn evidence and also called an alibi witness. The Court has noted all the evidence that was given in Court.

Analysis of Evidence in Relation to the Law
This Court has analysed all the evidence by all the witnesses in this case. The issues in this case are:

(a) whether the accused person stole from the outboard engine belonging to the complainant or not.

(b) The identification of the accused person as the person who stole the outboard engine.

(c) The date and time and place of the offending.

(d) Whether this Court believes the evidence of PW-2 Iliesa Raiqiwa from whom the outboard was recovered.

There is no issue in this case that an outboard engine was stolen and recovered from PW-2. The issue is whether it was stolen by the accused person who is on trial in this case.

The complainant told the Court that his Outboard Engine was stolen from the boat that was berthed. It was recovered by the police and he identified it as his. He also told the Court that he viewed a video footage which showed two people taking the engine but it was not clear and therefore the identity of the perpetrators could not be determined.

The second prosecution witness was Iliesa Raiqiwa who had the engine. He said he later realised it was stolen and he informed the Nabua Police. He told the Court the accused person with another brought the engine to him on 1st April 2014. The accused asked for taxi fare and he gave him $50.00. He said he did not know the accused and he said it was Tevita Kapaiwai. He also told the Court he was threatened by the accused before the case was first called.

In cross-examination PW-2 told the Court that on 1st April 2014 he was at home when accused came and he gave him $50 for taxi fare. The defence put to him that in his statement to the police he had mentioned $60. He stated that it should be $50 and was not written clearly. He also stated that 4th April 2013 is not the correct date on which he gave statement to the police. He also told the Court he did not know the accused. He said he knew it was stolen a week later.

The evidence of PW-2 is not reliable. The dates he gave in evidence which are crucial are not correct. The date given by PW-2 of the date he received the engine is 1st April 2014. This was the date after he was charged for the offence. This was not even corrected in re-examination. The date of the offence according to the police is 9th April 2013. The accused was charged in 2013. This inconsistency does not assist the prosecution case.

Furthermore this Court has concerns of the evidence of PW-2 when he states he did not know the accused but gave him $50 for the engine. PW-2 did not the accused from before. Yet easily he dealt with him. Even the sum he told the police and in Court is not the same. The evidence of PW-2 is inconsistent and not helpful to the Prosecution. This Court for these reasons does not believe PW-2 who is the crucial witness for prosecution.

The Court is not satisfied beyond reasonable doubt as to the guilt of the accused and does not find that the elements of the offence are proven. The accused is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

25th November 2014