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State v Cakau [2011] FJHC 249; HAC143.2007 (6 May 2011)

IN THE HIGH COURT OF FIJI AT LAUTOKA
[CRIMINAL JURISDICTION]


Criminal Case No: HAC 143 of 2007


BETWEEN :


THE STATE


AND:


1. MALELI CAKAU
2. JEMESA TURAGA
4. VILIAME GAUNA
-Accused Persons


RULING


State : Ms Elisapeci Whippy with Mr S Babitu, State Counsel

Accused-Persons : In person

Dates of Trial : 20, 21, 26 and 27 April, 2011

Written-Submissions : 02 May 2011

Hearing : 02 May 2011

Ruling : 06 May 2011


  1. The three accused abovenamed, together with Asivorosi Jitoka and Sairusi Soko, stood charged on the amended information dated 06 April 2011 of the Director of Public Prosecutions (DPP) on two charges of 'Robbery with Violence' and 'Criminal Intimidation' punishable under Sections 293 (1) (a) and 330 (a) of Penal Code. Asivorosi Jitoko and Sairusi Soko, who were the 3rd and the 5th accused respectively in the amended information, were acquitted at the close of the prosecution case pursuant to a submission by the State that there was no evidence against them in the circumstances set-out later in this ruling.
  2. The charge of 'Robbery with Violence' related to an incident of robbery of a jewellery shop in Ba in the Western Division around 10.00 a.m. on 03 September 2007. The jewellery shop, according to the prosecution, was robbed by a group of about six men armed with deadly weapons and the value of the jewellery robbed was $ 123, 895.00.
  3. The prosecution, at the out-set, relied on the confessions alleged to have been made by all accused persons to police in regard to the commission of the offences in support of its case. A voir dire was held from 06 April 2011 to 15 April 2011 to decide on the admissibility of the confessions. This court, by its ruling dated 20 April 2011, decided that the alleged confessions of all five accused were irrelevant and inadmissible for the reasons set-out in the ruling (Vide the ruling dated 20 April 2011, which is filed of record).
  4. The trial, thereupon, proceeded on the remaining evidence on the application of the prosecution.
  5. Evidence revealed that there was no identification parade despite the acts of robbery being witnessed by the security officer at the entrance, a sales girl at the shop and by another from a dispensary on the opposite side allegedly on the ground that the suspects could not be 'identified'. The capture of images on a closed-circuit television (CCTV), as testified to by the owner of the shop, Mr Baskar Jogia, was also not made use of in the investigations and by the prosecution at the trial. Instead, the case proceeded only on the basis of recent possession of jewellery allegedly by all five accused at points of time of their arrest between 04 September-05 September 2007.
  6. The doctrine of 'recent possession' furnishes a legal and factual basis to found a criminal prosecution. The underlying principle in the doctrine is that a person, who is in possession of stolen goods soon after a theft or an associated offence, implicates him in the act of receiving [stolen goods] or in the act of theft itself or in associated offences (R v. Garth [1949] 1 AER 773; R v Raviraj (1986) 85 Cr App R 93).
  7. The prosecution, for it to be benefitted from the application of the doctrine, must prove that:

(i) The accused possessed the goods;


(ii) The goods possessed by the accused were the subject matter of the offence, as complained to by the complainant; and,


(iii) There is no explanation from the accused in regard to his possession of the suspected goods.


  1. It is of paramount importance to note that the proof beyond a reasonable doubt of the first two elements only attracts the application of the third element of an explanation in order to establish a sustainable prosecution.
  2. The prosecution, with a view to prove the first two elements, led the evidence of Baskar Jogia, the owner of the jewellery shop, and of five police officers, who arrested the accused persons between 04 September-05 September 2007 separately at five different locations, to establish recent possession of suspected jewellery by all five accused and what they possessed were the items of jewellery that became to be the subject matter of robbery.
  3. (i) Testimony of witness-Baskar Jogia revealed that items of jewellery were shown to him by police on 04, 05 and 06 September 2007 and he could identify them to be his from price tags, weight and reference numbers. He said that he could not remember the value of the jewellery that was robbed; and, that all jewellery was not recovered. Hence, he could not identify all that was robbed. According to the witness, police had kept the jewellery in their custody after they were shown until his evidence was recorded on 20 April 2011.

(ii) The witness was loosely led by the learned prosecuting counsel to identify a haul of jewellery spread across the Bar table, which the witness ventured to identify as those of his despite some price tags were broken and without any engravings, distinct or otherwise, on the jewellery.


(iii) Answering cross-examination by the 2nd accused, witness-Jogia said that he had arrived at the figure of $ 123, 895.00 upon examining the weight of the items based on his records. He, however, did not produce any document or book to show the stock or an inventory to establish the items on sale and that the whole or part of it became to be robbed at the time of the incident.


(iv) In reply to the cross-examination by the 4th accused, witness said that the police had brought parcels of jewellery on 04, 05 and 06 September 2007 and that he was not aware when those had been recovered by police.


(v) Learned prosecuting counsel, at the end of the re-examination by her, chose to tender in evidence the whole haul of jewellery marked as 'PE 1' without getting the witness to identify the sets of jewellery separately in relation to each accused recovered on each date.


  1. (i) Police Constable 2728 Enerico Navunivi stated that the 1st accused-Maleli Cakau was arrested around 2.30 p.m. on 04 September 2007 at Koro O. He further said that, upon his arrest, he searched a jacket with the label adidas wrapped around his waist and found some jewellery inside it.

(ii) Answering cross-examination, witness said that it was a black jacket in which the jewellery was found and not inside 'a black bag' as he had claimed in his statement of 4 September 2007. He said that he did not have anyone else to confirm that the suspected jewellery was found on the 1st accused's person and that he did not get any writing to acknowledge the recovery of the items from the possession of the 1st accused. Answering further, he admitted that he did not say in his statement of 04 September 2007 that he had seen the suspected jewellery by himself at the point of arrest but by another officer who had found the same after opening the black bag at Ba Police Station.


(iii) The prosecution, having marked and produced the black jacket as 'PE 3', did not, however, mark or produce the items of jewellery that was said to have been recovered from the 1st accused on 4 September 2007. Nor did the witness identify a part of jewellery out of the haul of jewellery produced as 'PE 1' as being those found in possession of the 1st accused at the point of arrest on 04 September 2007 with any mark/s.


  1. (i) Police Constable 3072 John Hunt, in his evidence, said that he had arrested the 2nd accused Jemesa Turaga around 4.00 p.m. on 04 September 2007 at Monasavu. He said that, upon his search, he found two parcels of jewellery wrapped in two pieces of a cloth concealed under his undergarments. Two pieces of the cloth, apparently from a bed-sheet, was marked as 'PE 4' but not the jewellery concealed under it.

(ii) He said that he did not have a record of what was recovered from the 2nd accused and that he could not recall the number of bangles, gold rings, earrings and gold chains recovered from the 2nd accused. When the witness was asked to identify jewellery shown by the learned prosecuting counsel, he readily chose to identify a part of the jewellery as being those recovered from the 2nd accused without any contemporaneous record to that effect or any mark/s to distinguish that part of the jewellery out of the haul of jewellery produced as 'PE 1'.


(iii) The witness, when asked by the learned prosecuting counsel to demonstrate the parcels as he recovered from the 2nd accused, he randomly packed some jewellery into two parcels without any marks for their identification from the rest of the jewellery. He said that there were no marks put as he recovered the jewellery from the 2nd accused and that there was nothing in acknowledgement of the recovery by the 2nd accused.


  1. (i) Police Constable 3903 Sabino Duaibe, in his evidence, said that he joined a search team on 04 September 2007 to look for suspects involved in the robbery of a jewellery shop at Ba. He said that he reached Nadala village in Nadarivatu where he saw two suspects walking on the road. As they approached, one of the suspects had run to the left side of the road, while the other ran into the bushes. He had come 'face to face' with one of them and was able to catch him whom he identified in court as the 3rd accused-Asivorosi Jitoko.

(ii) Witness Duaibe did not recover any suspected items from the possession of the 3rd accused-Asivorosi Jitoko.


(iii) As he looked for the other suspect, he saw that suspect jumping into the river close-by. He saw the suspect only with his underwear. A bag in the river was also seen by the witness. The witness followed the suspect and arrested him whom he identified in court as the 4th accused-Viliame Gauna.


(iv) It was the evidence of the witness that he took the bag, which was wet, into his custody and opened it as it was handed over to the Ba Police Station where he ascertained that the bag had contained a parcel of lots of jewellery. The prosecution marked and produced the bag as 'PE 5' but not the jewellery said to have been found in it.


(v) When the witness was asked to identify separately the jewellery, which was said to have been found inside the bag, he could not identify the same from the haul of jewellery marked as 'PE-1'.


  1. Police Constable 4221 Iveri Momo testified and said that, upon receipt of information that the suspects involved in robbery at a jewellery shop in Ba were roaming around Tavua, he joined a police team for their search on 05 September 2007. He was able to arrest one suspect in the town of Tavua while he was buying some grocery items. As the witness was on the look-out for a second suspect, he found that the suspect was arrested by villagers whom he identified in court as the 5th accused.
  2. Special constable 1815 Vilikesa said that he found a man under arrest by villagers of Tavualevu on 05 September 2007. Upon inquiry, he found his name to be Soko Radrala. The suspect was handcuffed and brought to Tavua Police Station. The suspect was searched at the police station and bangles, rings and some money were found in his person. Witnesss said that he could not recall what kind of jewellery they were. He could not identify the suspect in court, whose name was recorded as Soko Radrala at the point of arrest.
  3. The case for the prosecution was closed on 27 April 2011 after leading the evidence of Detective Constable 2944 Ashwin Prakash, who was the officer in charge of the overall investigation into the crime that took place at the jewellery shop in Ba on 03 September 2007, and with productions marked as 'PE 1'-'PE 5'.
  4. The State was, thereupon, invited to sum-up the evidence of the prosecution thus far led for court to be able to make a provisional determination whether or not to proceed with the case in the exercise of power under Section 231 of the Criminal Procedure Decree No 43 of 2009.
  5. Mr Semi Babitu, learned counsel for the State, supported by a concise written submission, focused only on the legal application of the doctrine of recent possession. He confined to the requirement of an explanation by accused persons without addressing his mind to the first two elements above referred to in the context of factual setting in this case.
  6. The test for making a determination at this stage is based on the existence of some relevant and admissible evidence, either direct or circumstantial, connecting the accused to all elements of the offence. Kalisoqo v State Criminal Appeal No 52 of 1984; State v MoseseTuisawau Criminal Appeal No 14 of 1990; FICAC v Rajendra Kumar and Jaswant Kumar HAC 001/09. The identity of the accused person, of course, is also an issue, which must be primarily considered before analyzing the elements of the offence in light of the evidence.
  7. (i) Ms Whippy, learned senior counsel for the State in this case, supplementing the submissions of Mr Babitu, informed court that the identity of the 5th accused-Sairusi Soko was not established in relation to any recent possession of suspected goods. Court agreed with this submission in light of the evidence against the 5th accused. The 5th accused was accordingly acquitted on 02 May 2011.

(ii) Ms Whippy further submitted that no recoveries were made from the 3rd accused-Asivorosi Jitoko so as to connect him to the relevant charge in the information based on recent possession. This submission too, supported by evidence, was accepted by court. The 3rd accused was also accordingly acquitted on 02 May 2011.


(Vide the extempore orders dated 02 May 2011, which are filed of record)


  1. According to the prosecution evidence, the 3rd accused and the 4th accused were seen together by witness-Duaibe on 04 September 2007 who subsequently arrested both of them separately at two different locations within minutes. A point to be noted here is that there was no evidence that anyone of them was in possession of the bag 'PE 5' or the bag was seen in the vicinity. In response to the pursuit, the 4th accused had jumped into the water and he was swimming across the river with a view to escape from capture by police. The bag 'PE 5', according to the witness, was seen in the river. There was no evidence to connect that the 4th accused was the possessor of the bag apart from his being found near to it in the water, the circumstances for which were explained by evidence as set-out above in light of the turn of events that had just preceded the arrest.
  2. The case against the 3rd and the 4th accused, as it was presented by the prosecution on the strength of the evidence of witness-Duaibe, was on following lines:

[Witness Duaibe] arrested 3A and 4A on [04.09.2007]. They were arrested within minutes of each other. That was within same area. Substantial amount of jewellery recovered near or around one of them.


(Re-examination by Ms Whippy of witness Duaibe at page 47 of the original record.


  1. The above proposition, in light of the evidence as shown above, is so wide, imprecise and vague to furnish a basis to hold an accused person criminally liable on the application of the doctrine of recent possession. Notwithstanding the above proposition, Ms Whippy was, however, later enlightened to concede that there was no evidence to proceed further against the 3rd accused-Asivorosi Jitoko in the absence of any goods being recovered from him pursuant to which he was acquitted.
  2. The above concession, in court's view, should have been extended to the 4th accused-Viliame Gauna as well in the absence of any evidence, either direct or circumstantial, to safely and inescapably infer that he was the possessor of the bag 'PE 5', which was found adrift in the river, in which some jewellery were said to have been recovered by police. This court, upon an analysis of the evidence against the 4th accused, holds that there is no basis to proceed further against the 4th accused as the bag was not found in his exclusive possession or at a place where he had control. Accordingly, the 4th accused-Viliame Gauna is acquitted of the charge in count (1) based on recent possession.
  3. As regards the 1st and the 2nd accused, this court comes to following findings in common on the basis of prosecution evidence.
  4. The concept of possession also plays a dominant role in the doctrine of recent possession. First and foremost, the prosecution must establish its fundamentals in that it must prove the conscious possession of the relevant articles. That could be achieved only by establishing clearly that what was presented in court was, in fact, what was recovered from the accused by means of a chain of custody of productions.
  5. The chain of custody of productions was not even thought of in this case. The situation is more exacerbated by the total absence of evidence to identify the jewellery as possessed by the 1st and the 2nd accused separately by the two police witnesses, who claimed to have recovered such jewellery from the possession of the two accused.
  6. In the result, the prosecution has failed to establish the first two elements at all against the 1st and the 2nd accused. This court, in the circumstances, does not find a basis to proceed with the case against them further on the charge in count (1). The 1st and the 2nd accused are, accordingly, acquitted.
  7. The prosecution did not offer any evidence at all against the 1st, the 2nd and the 4th accused in regard to the charge in count (2). The 1st, the 2nd and the 4th accused are acquitted of count (2) relating to criminal intimidation.
  8. In order to avoid any doubt, the 3rd and the 5th accused, who, too, stood charged under count (2) for criminal intimidation also stand acquitted of that count in view of the foregoing reason.

Priyantha Nāwāna

Judge

High Court

Lautoka
06 May 2007

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