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State v Cakacaka [2015] FJMC 105; Criminal Case 604.2014 (5 October 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No: 604/2014

STATE

V

RUSIATE CAKACAKA

Cpl: Luke appeared for the prosecution.
Accused was absent and not represented.

JUDGMENT

The Fact

1. The accused was charged with one count of Theft Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

2. The particulars of the alleged offence has provided as follows. That the accused RUSIATE CAKACAKA on the 13th day of February 2014 at Suva in the Central Division dishonestly appropriated (stole) cash amounting of $120.00 and the school ticket valued at $9.30 cents all to the total value of $129.00 cents with the intention of permanently depriving the property of Dee Cees Bus Company.

3. As the accused plead "not guilty" matter fixed for hearing on 6/08/2015. On the hearing date the accused did not appear nor was he not represent by a counsel. At 11:15am prosecution for the benefit of the state and to serve the public moneys made application under SECTION 171(1) OF CRIMINAL PROCEDURE CODE to precede the hearing in the absence of the accused. The section 171 of CPD could be reproduces as follows;

Non – appearance of parties after adjournment

"Sect:171. — (1) If at the time or place to which the hearing or further hearing is adjourned

(a) the accused person does not appear before the court which has made the order of adjournment, the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and

(b) if the complainant does not appear the court may dismiss the charge with or without costs.

(2) If the accused person who has not appeared is charged with an indictable offence, or if the court refrains from convicting the accused person in his or her absence, the court shall issue a warrant for the apprehension of the accused person and cause him or her to be brought before the court".

4. Since alleged offence is not with in the categorized as an indictable offence, leave grant to precede the hearing after considering the fact by court for the best interest of justice.

5. Thereafter the prosecution commenced their case. The complainant and police officer were called as prosecution witnesses.

PW1- Mohomed Ismail – (the complainant) Bus Driver,
PW-2- SPC 4106 Ropate Loloma – Police Officer,

The Law

6. Section 291 of the Crime Decree interprets theft as "A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property".

7. The elements of the charge of Theft has mentioned by Pryantha Fernando J. in State v Tukai - Summing Up [2015] FJHC 114; HAC253.2013 (20 February 2015) as follows.

"For the accused to be found guilty of theft, the prosecution must prove the following elements beyond reasonable doubt.

1].The accused;

2].Dishonestly;

3].Appropriated;

4].the property belonging to another;

5]. with the intention of permanently depriving the other of that property"

8. His lordship further in State v Tukai - Summing Up [2015] FJHC 114; HAC253.2013 (20 February 2015) explained the elements and has held "Dishonestly means not being honest. Appropriation of property means to take possession or control of the property without the consent of the person to whom it belongs. In law property belonging to a person if that person has possession or control of the property. Once the possession of the property is taken by the accused from the person whom it belongs to, if he uses it or deals with it as the owner without the consent of the said person then he commits theft".

" Intention of permanently depriving a person of property' is also defined in law. If an accused person appropriates property belonging to the complainant without meaning the complainant permanently to lose the thing and if the accused person's intention is to treat the property as his own to dispose of regardless of the complainants rights, then the accused has the intention of permanently depriving the complainant of it."

The Evidence

9. PW1- Mohomed Ismail – (the complainant) stated that he can recalled 13/2/2014 he was at Bus Stand at around 7:14 pm. He parked his bus and collecting money. Then he heard sound of his coin box from his right hand side. When turning he has noticed a hand and he grabbed it. It was accused and he pulled the hand and started running. The witness said " I did not see the face but he (accused) was wearing black hat black jeans .i shouted, then the police officer was there. he told me that is "JOB JOB"( this is another name for accused)". He said $120 notes and school tickets have stolen. There was no recovery of items.

10. PW-2- SPC 4106 Ropate Loloma – Police Officer. He stated that on 13/2/2014 he was at Suva bus stand waiting for Nandera Bus. At around 7:14 pm He noticed the accused (whom he knew the accused as witness used to be accuses escorting officer) working towards the Nandera Bus from drivers side. After 2-3 mints he heard the driver shouting. After accused ran passing the witness. Then the driver got off from the bus. The witness identified the driver of the bus who was sitting at the court room. Witness added " I asked him what happened.then he told me; somebody stole my money". Then the witness took the driver to police post.

11. Then the prosecution closed their case.
Determination
12. The main issue to be addressed by this court is whether prosecution positively proved the identity of the accused in the theft or not? As per evidence the accused has been in the place of this alleged crime. But this court cannot see the Complainant knew the accused. Therefore it is essential to have ID parade or Dock Identification. But PW-2 Knew the accused and he identified the Complainant at the open court. This court satisfied with this connection. Therefore answers the issue as positive.
13. Therefore this court convicts the accused as charged.

14. 28 days to appeal.

On 5th Oct 2015 at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate