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State v Baravi [2014] FJMC 46; Criminal Case 1647.2012 (27 March 2014)

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

Criminal Case No: 1647/12

State

V

Josaia Baravi

Prosecution: PC Raymond
Accused: Present – Mr Waqanibete (Legal Aid Commission)

Judgment

Introduction
Josaia Baravi was charged with theft, contrary to Section 291 of the Crimes Decree 2009.
The Particulars of Alleged Offence is that:

"Josaia Baravi and other on the 26th day of October 2012 at Suva in the Central Division dishonestly appropriated (stole) 1 x Wallet valued at $15.00 containing $77.00 cash all to the total value of $92.00 the property of Fane Tuifagalele."

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 1 witness. The accused gave sworn evidence. Before the hearing the defence and the prosecution agreed on identification of accused (he was in the night club), and the time and place of alleged offence. The defence also did not deny that the complainants purse was stolen. They also agreed that the caution interview be admitted in evidence. The Court has noted all the evidence that was given in Court and the documents that were tendered.

Analysis of Evidence in Relation to the Law
This Court has analysed all the evidence by all the witnesses in this case. With the prosecution and defence agreeing to number of issues. The main issue for this Court was if the accused stole the complainants purse or if he was an accomplice. The other accused person had pleaded guilty and was convicted by this Court.

The crucial issue in this case is whether the accused person stole from the complainant or not and/or if the other person who was convicted by this Court was assisted by this accused person in stealing the purse of the complainant.

PW-1 (Samuela Kinibogi) stated in his examination in chief, "that the accused was talking with complainant. She had bag on her right. I saw the accused take purse from complainant's bag and give to another guy. I was as far as I am seated in the dock to the clerks (which is about 1 to 1.5 m) I am sure I saw accused take the purse of complainants bag. Accused wore yellow and white t/shirt and ¾ lees.... We arrested both, person who took it out and the one whom he gave it to.... I found the purse on the person to whom the accused passed it on to." In cross-examination PW stated "gave statement to police... saw accused take purse and give to another. I told police everything."

The accused gave sworn evidence and denied the offence.

Having noted all the evidence This Court notes that the defence in cross examination tested the credibility of PW-1 the night-club security who was the prosecution's key witness. PW-1 told the court he saw the accused take the purse and pass it on to another. While the Court has noted that the statement to the police by PW-1 was different in some aspects this Court takes the version of events the witness has narrated in Court. This Court has noted the demeanour of PW-1. He has not changed the version of events to benefit him or to assist anyone. He has recalled the version of events as he saw it. This Court accepts his version of events. He was not discredited even in the tough cross-examination that was conducted. This Court believes Pw-1's version of events as opposed to that of the accused.

The Court is satisfied beyond reasonable doubt as to the guilt of the accused and finds that every element of the offence is proven. The accused is convicted as charged. This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

27th March 2014