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State v Suota [2017] FJMC 118; Criminal Case 292 of 2012 (29 September 2017)

IN THE MAGISTRATE’S COURT AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. 292 of 2012

STATE

v

ESAKAIA SUOTA

For the Prosecution : CPL Monish
For the Accused : Ms Devi. S

Judgment : 29 September 2017

JUDGMENT

1. The accused, Esakaia Suota was charged for Theft, contrary to section 291 of the Crimes Decree of 2009.
   
2. The particulars of the offence are ; -

“Esakaia Suota on the 16^th day of April 2012, at Labasa in the Northern Division stole one railway cart valued at $5,000.00, the property of Fiji Sugar Co-operation Limited.”

3. The court vacated the Accused guilty plea on 12 June 2012, when the Accused raised a defence in his mitigation and recorded a not guilty plea.
   
4. The case proceeded to trial on 9 August 2016. The Prosecution called two witnesses. The Defence also called two witnesses.
   
5. Section 291 of the Crime Act State:-

“A person commits a summary offence if he or she dishonestly appropriates property belongings to another with the intention of permanently depriving the other of the property.”

6. The elements of the offence are;-
   1. the accused,
   2. dishonesty appropriates,
   100. the property of another person,
   4. with the intention,
   5. to permanently deprive the owner.
      
7. The onus is on the Prosecution to prove all the elements of the offence beyond reasonable doubts.
   
8. PW1 – Navitalai Masinivua a retired Logistic Manager for FSC. He retired on 21 October 2014. On 16 April 2012, he received a report that a cane truck owned by FSC was loaded into scrap metal truck at Batinikama area. The cane truck is owned by FSC and belongs to FSC at any point in time and nobody can pull and sell the truck. The truck in Labasa carries four digits number. The cane truck was at Batinikama junction and regarded as unserviceable truck. Unserviceable trucks are left at certain point for a few days or weeks to be brought back to the mill for repair. Matter was reported to the police and he went with the police and stop the scrap metal truck at Naseakula near the service station. They found the cane truck in the scrap metal truck with other scrap metal (Photograph No.3 of Prosecution Exhibit 1). It is dirty and covered with mud. If it was hidden by the farmers in their farm than it will be in that area for very long time. He stated that a standard serviceable truck is worth $5000.00 and they do not put a value on a unserviceable truck. He stated that there is no such dumping site for railway truck.
   
9. PW2 – WDCPL 2440 Fariden. He was the investigation officer in this case. They stop a truck with loads of scrap metal at Nasekula and they saw a railway cart in the truck. With him is DC Timoci. The truck driver said they loaded it from Hannah Steel Company Ltd. He went to enquire from Hannah Steel and was informed that the cane truck was loaded from Batinikama top line. In the cause of the investigation he find that the railway truck belongs to FSC Labasa as it was identify by PW1 who reported the matter to the police. He find out from the investigation that the accused sold the truck to Ghanna steel. He identify the accused in court as the person sitting in the accused dock. There was two numbers (18) written on the truck. That is the number he saw when it was recovered. It was a normal railway truck with mud and dirt on it. He tendered the caution interview PE2.
   
10. The Accused said he cannot recall 16 April 2012. He dug the railway cart from a river side where it was buried there for years as FSC used to dump metal waste at his village at Vunimoli. He knew that all the railway cart owned by FSC. He sold the railway cart for $80.00 as he does not know who owns it because it was not in the FSC lease and it did not belong to FSC. He asked the FSC workers about the railway cart and they said it was there for long time and it nothing and it is not good. No one is willing to give evidence for him because they all go to work.
    
11. DW2 – Isikeli Raratoka. He is from Namoli village and FSC used to dump material near the bridge. The railway cart was there for long years and was buried in the soil. FSC never came to inspect the cart at anytime. It was rusty with no wheel and number as it was very old.
    
12. PW1 state that the railway cart is owned by FSC. There is no proof of ownership. There is no evidence of four digits to prove the number of the identity of the railway cart as PW1 stated that Labasa railway cart has four digits. There is no documentary evidence to prove that according to FSC records of property the said railway cart is still owned by FSC despite the condition when it was recovered. If it was missing or hidden by the farmers, there is no evidence from FSC on record to prove that it was a missing railway cart. These are all the material evidence that prosecution must adduce considering the standard of prove in criminal case which is beyond reasonable doubt. Also considering the position of the accused in his caution interview. There was no proof that it was still owned by FSC at the material time of this case.
    
13. The Accused and DW2 stated that the railway cart was lying there for years and no one from FSC has ever come to inspect the same. The Accused stated that he has enquire with FSC employees about the railway cart and he was informed that it was there for long time and it is nothing as it is not good. It was not in the FSC lease or Batinikama junction as stated by PW1 or Batinikama top line as stated by PW2. The accused dug the railway cart from beside the river, there is no wheel and it was covered with mud and soil. The accused deny it is owned by FSC.
    
14. There are some contradiction on evidence of PW1 and PW2. PW1 stated that he went with the police and they stop the scrap metal truck at Nasekula. PW2 stated when they stop the scrap metal truck, DC Timoci was with him and no mention of PW1. PW1 said the railway cart was at Batinikama junction whilst PW2 said it was at Batinikama top line.
    
15. As a trier of facts with the benefit of observing the demeanour of the witness, I find the Defence witnesses to be more credible and their evidence are more reliable than the prosecution. I therefore accept the evidence of the Defence that the railway cart was beside the river for many years and was covered with soil and mud. PW1 and PW2 confirmed that the railway cart was muddy and dirty at the time of recovery. I reject the evidence of PW1 that the railway cart still owned by FSC as he was not able prove the ownership. The cost of the railway cart is not $5000.00 as PW1 regarded the said railway cart at the material time as unserviceable truck. The $5000.00 is the value of a serviceable railway cart and they do not give value to the unserviceable truck.
    
16. Considering the evidence in totality, I find that the Prosecution is unable to discharge the burden of proof required of him in this case. There are doubts on the elements of ownership, dishonesty, and intention to permanently deprive as discussed above.
    
17. In my judgment, I find the Accused not guilty as charged and I acquit the Accused accordingly.
    

28 days to appeal

C. M. Tuberi

RESIDENT MAGISTRATE