State v Tuiyanawai [2005] FJHC 176; HAC0022zz.2004S (11 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004

STATE

v.

SAMISONI TUIYANAWAI
SEMISI WAINIQOLO
SOLOMONI BOINI
MOSESE YACO

Hearing: 11th July 2005
Ruling: 11th July 2005

Counsel: Mr. W. Kuruisaqila for State
All accused in person

RULING ON NO CASE TO ANSWER
FOR THE 2ND ACCUSED

I asked State counsel to make submissions to me on sufficiency of evidence at the end of the prosecution case, in respect of the 2nd Accused Semisi Wainiqolo. This is because the only direct evidence against him thus far, is his admission that he received $62,000 of the proceeds of the robbery on the 6th of June 2003, at 10pm at night.

The test at this stage of the trial is whether there is some evidence on each element of the offence, against the accused. The evidence must be relevant and admissible (State v. Sisa Kalisoqo).

The evidence against the 2nd Accused on Count 1 is circumstantial. It is that, one day after the robbery he was handed $62,000.00 in cash and told it was from the Westpac bank robbery. If that admission is accepted, then of course he is guilty of receiving stolen property. The question for me is whether, that admission constitutes sufficient evidence under section 293 of the Criminal Procedure Code, for a case to answer on the charge of robbery.

State counsel relied upon the doctrine of recent possession in his submissions. That doctrine is, that where an accused person is found, shortly after a theft or robbery, in possession of the stolen goods, then he may be convicted either of the theft or robbery or of receiving stolen property. It is for the assessors to decide whether the accused has offered a reasonable and acceptable excuse for the possession of the stolen property.

He referred to the case of Bruce v. The Queen 1987 61 CLR 603. In that case, it was held that an accused person could be found guilty of either theft or dishonest handling if the jury was satisfied that the accused was in possession of the property, that it was recently stolen, and that he has given no explanation of his possession or has given a lying explanation. The High Court approved the direction, saying that the accused’s right to silence on being interviewed by the police did not in itself provide an explanation for the possession, nor excuse the lack of a reasonable explanation.

In response the 2nd Accused said that there was no link between him and the robbery, that his co-accuseds’ statements should be disregarded, and that he did not know, when he received it, that the money was stolen.

This last matter is of course a matter for the assessors to consider with all the evidence, including the terms of the interview itself. Further, in this ruling I disregard in their entirety, the contents of the statements of the other accused.

I do accept however, that mere possession of stolen property shortly after the robbery, allows the assessors to infer guilty knowledge in relation to both robbery and receiving stolen property. On that basis, I accept that it is for the assessors to decide what weight to put on the 2nd Accused’s explanation.

The 2nd Accused of course denied being part of the robbery. However I accept that the truth or otherwise of his interview to the police is a matter for the assessors. Whether or not, his possession of $61,000 of the bank robbery proceeds can only be explained by a direct role played by the 2nd Accused, on either count is also a question for the assessors. Certainly there is sufficient circumstantial and direct evidence in the prosecution case, to allow them to draw any such inferences.

There is a case to answer for the 2nd Accused. On the basis of their confessions to the police there is also a case for the 1st, 3rd and 4th Accused persons.

Nazhat Shameem
JUDGE

At Suva
11th July 2005