State v Anderson [2019] FJHC 742; HAC31.2018 (26 July 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 31 of 2018

STATE

vs.

1. HARRY ANDERSON
2. VILIAME COLATI
   

Counsel: Ms. U. Tamanikaiyaroi for the State
Accused 1 - Appearing in Person
Mr. K. Chang with Ms. R. Nabainivalu for Accused 2

Date of Hearing: 22^nd. 23^rd, 24^th and 25^th July 2019
Date of Ruling: 26^th July 2019

RULING
[ON NO CASE TO ANSWER]

1. The two accused are being charged with one count of Aggravated Robbery, contrary to Section 311 ( 1) (a) of the Crimes Act. The particulars of the offence are that:
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Act 2009.

Particulars of Offence

HARRY ANDERSON and VILIAME COLATI between the 14^th day and the 15^th day of January, 2018 at Nasinu in the Central Division, in the company of each other, robbed HIRDESHNI SHEELAM GAUTAM of 1 x Nokia N5 Mobile phone valued at $495.00, 1 x vodafone Huwaei WIFI Modem valued at $140.00 and an E-Ticketing Card, all to the total value of $635.00, the property of HIRDESHNI SHEELAM GAUTAM.

2. The hearing of this matter commenced on the 22nd of July 2019. The prosecution presented the evidence of six witnesses and closed the case of the prosecution. The learned Counsel for the second accused then made submissions pursuant to Section 231 (1) of the Criminal Procedure Act, stating that there is no evidence to identify the two accused as the alleged perpetrators of this alleged crime. I then directed the learned Counsel for the prosecution, the first accused and the learned counsel for the second accused to make their respective oral submissions, which they did as per the directions. Having taken into consideration the evidence presented by the prosecution and the respective submissions of the parties, I now proceed to pronounce my ruling as follows.
   

The Law on No Case to Answer

3. Section 231 (1) of the Criminal Procedure Act states that:
   

“When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence.”

4. Accordingly, the trial Judge is required to find the accused not guilty at the conclusion of the case of the prosecution, if the court considers that there is no evidence to establish that the accused person committed the offence.
   
5. The Fiji Court of Appeal in Talala v State [2019] FJCA 50; AAU155.2015 (7 March 2019) held that the test under Section 231 (1) of the Criminal Procedure Act is to determine whether there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the charge. It is not a duty of the court to take into consideration the credibility, reliability and the weight of the evidence at that state. The Fiji Court of Appeal in Talala v State (supra) held that:
   

“It is well settled that, the test at this stage of the trial is whether there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the charge and not an assessment of the weight and credibility of such evidence, unless the evidence is inherently vague or improbable.”

6. The High Court of Fiji in State v Nikolic [2019] FJHC 91; HAC115.2018 (18 February 2019) held that:
   

“The test for a no case to answer application inHigh Cour Court is settled. The test is whether there is some incriminating evidence, direct or circumstantial, on all the esseningredients of the charged offence or offences (Sisa Kalisoqo v R Criminal Appeal <160;Noof 1984, State vate v Mosese Tuisawau Cr. App. 14/90, State v Woo Chin Chae [2000] HAC 023/9/99S).”

7. Accordingly, the Court is required to determine whether the prosecution presented some relevant and admissible incriminating evidence, direct or circumstantial, on all the essential elements of the offence as charged.
   

Elements of the Offence

8. I now turn into discuss the main elements of the offence of Aggravated Robbery. The prosecution has alleged that the two accused in company with each other had robbed the complainant of one Nokia N 5 Mobile Phone, One Vodafone Huawei Wifi Modem, and one E-ticketing card. All of these properties were belonged to the complainant.
   
9. Accordingly, the main elements of the offence as charged are that:
   

1. The two accused, in this case Harry Anderson and Village Colati,
2. In the company of each other,
3. Dishonestly appropriates one Nokia N5 Mobile Phone, one Vodafone

Huawei Wifi Modem and one E-ticketing card belong to the complainant,

in this case Hirdeshni Sheelam Gautam,

4. With the intention of permanently deprives it,
5. And used force on Hirdeshni Sheelam Goutam, before stealing the said

items.

10. Having carefully taken into consideration the evidence presented by the prosecution, it appears that the prosecution presented the case on two components. The first component is the robbery, for which the prosecution presented the direct evidence of the complainant. The second component is the identity of the two alleged perpetrators. In order to establish the second component, the prosecution relies on the principle of “recent possession of stolen items.”
    
11. The complainant presented evidence explaining the events that unfolded during the late hours of the night of 14th of January 2018. When she came home and parked the car and about to get off, a man came and opened the door and pushed her face with his hand. He then grabbed her mobile phone and the hand bag and ran away. She had chased him after and found that, actually two men were running away. The two men then got into a car which was parked along the road and left the scene. She explained that the man grabbed her Nokia N 5 mobile phone, hand bag which contained her e-ticketing card and white colour Huawei Wifi modem. The family of the complainant had reported the matter to the police and the police came within 30 minutes after the incident. Having searched the area, the police had left. Few hours later, the police came again and showed her a mobile phone and e-ticketing card which she identified as her Nokia N 5 mobile phone and the e-ticketing card that were stolen from her. The prosecution then tendered the Nokia N 5 mobile phone as the Prosecution Exhibit One and the e-ticketing card as Prosecution Exhibit Two. The complainant had not seen the two perpetrators properly and identified them. She only said that they were males.
    

Recent Possession

12. The prosecution relies on the principle of recent possession of stolen property in order to establish the identity of the two perpetrators. In order to establish the identity of the alleged perpetrators, the prosecution presented the evidence of SC Peni, DC Binay and SC Luke.
    
13. Regina v Morin ( 1957) O.R. 337 (CA) has discussed the principle of recent possession, where Laidlaw J.A. held that:
    

"If the prosecution establishes the fact of theft and the fact of recent possession by the accused of the stolen goods, then, in the absence of any evidence to explain how the accused obtained possession of them, the jury may convict the accused.”

14. The Court of Appeal of England in R v Smythe ( 72 Cr App R 8, CA) has discussed the scope of the principle of recent possession, where it was held that:
    

“In Cross on Evidence (5th ed, 1979) the effect of all these authorities is cogently and clearly summarised at P 49. We respectfully adopt the words there used; “if someone is found in possession of goods soon after they have been missed and he fails to give a credible explanation of the manner in which he came by them, the jury are justified in inferring that he was either the thief or else guilt of dishonestly handling the goods, knowing or believing them to have been stolen.”

15. The Supreme Court of Fiji in Timo v State [2019] FJSC 1; CAV0022.2018 (25 April 2019) has discussed the principle of recent possession and found it as a circumstantial evidence which allows the court to make a further inference that the person who is found in possession of the stolen items has stolen the said property or party to the theft. Keith J in Timo v State (supra) found that:
    

“Indeed, this was a classic example of the application of that strand of circumstantial evidence commonly called “recent possession”. In cases where a defendant is found to have been in possession of property which has been stolen very recently, so that it can be said that he was in recent poson of it suit such that it plainly calls for an explanation from him about how he came to be in possession of it, and either no explanation is given, or such explanation as is given is u, thet is entitled to d to infer, looking at all the relevant cint circumstances, that the defendant stole the property in question or was a party to its theft. And if the property had been stolen in a burglary or a robbery, the court is entitled to infer, again looking at all the relevant circumstances, that the defendant took part in the burglary or the robbery in which the property was stolen: see, for example, Blackstone’s Criminal Practice 2016, paras F.63-F.64, and applied in Fiji in Wainiqolo v The State [2006] FJCA 49 and Rokodreu v The State [2018] FJCA 209.”

16. Accordingly, if someone is found in possession of property soon after it has been stolen, and he fails to give a reasonable explanation of the manner in which he came to be in possession of the said stolen item, it is justified in inferring that he was either the thief or else a guilty receiver of the said stolen property.
    
17. In order to established the principle of recent possession of stolen property, the prosecution is required to prove the following elements that:
    

1. The two accused possessed the goods,
2. The goods were recently stolen items,
3. The said goods are the subject matter of the complaint by the

• complainant, (the good found in possession of the accused are the same goods that were stolen from the complainant),

4. There are no reasonable explanations by the accused in regards to their

• possession of the said goods.
  

18. I now draw my attention to determine whether there are some relevant and admissible evidence to establish the above stated elements of the recent possession.
    
19. The complainant in her evidence said that a police officer showed her mobile phone, Wifi modem and E-Ticketing card, which she identified as the items stolen from her. The prosecution tendered the mobile phone as prosecution exhibit 1 and the E-Ticketing card as prosecution exhibit 2. The complainant neither identified any Wifi modem in evidence nor tendered any as such as prosecution exhibit.
    
20. SC Peni in his evidence said that he searched the back seat of the car driven by the first accused and found a Nokia mobile phone, Wifi modem and E-Ticketing card. He had then given those items to PC Mika. SC Peni did not explain the descriptions of the mobile phone, the Wifi modem and the e-ticketing card. He merely said that it was a Nokia mobile phone. Moreover, SC Peni did not say in his evidence that the mobile phone and E-Ticketing card which he found in the car were the same mobile phone and the E-Ticketing card that the complainant identified and marked as prosecution exhibit 1 and 2. Accordingly, there is no evidence to establish the mobile phone, Wifi modem and the E-Ticketing card found by SC Peni in the car driven by the first accused were the same mobile phone and E-Ticketing card that were stolen from the complainant.
    
21. The prosecution did not call PC Mika to give evidence. SC Luke was at the scene when the car driven by the first accused were searched by SC Peni, SC Kami and SC Pau. He has not taken part in the search processes. However, SC Luke said that he saw SC Peni recovered a mobile phone, Wifi modem and an E-Ticketing card from the car. The Police officers have then gone to the complainant’s place. PC Mika has then given SC Luke a mobile phone, an E-Ticketing card and a Wifi modem to go and show them to the complainant. The complainant then identified them as the items that were stolen from her.
    
22. SC Luke in his evidence did not say that PC Mika gave him the same mobile phone and E-ticketing card that the prosecution marked and tendered as Prosecution Exhibits 1 and 2. Moreover, he did not say PC Mika gave him the same mobile phone, Wifi modem and the E-Ticketing card that were recovered by SC Peni from the car driven by the first accused. PC Mika did not give evidence, hence, there is no evidence to establish that PC Mika gave SC Luke the same mobile phone, Wifi modem and the E-Ticketing card that were given to him by SC Peni after recovering them from the car driven by the first accused.
    
23. SC Peni did not identify in his evidence the Prosecution Exhibits 1 and 2 as the same mobile phone and the E-Ticketing card which he recovered from the car driven by the first accused. Moreover, SC Luke did not identify in his evidence the Prosecution Exhibits 1 and 2 as the same mobile phone and the E-Ticketing card that PC Mika gave to him in order to show them to the complainant.
    
24. DC Binay Kumar was the Investigation Officer of this matter. He was at the scene of the search of the car and then went to the Police Station. At the Police Station PC Mika gave him a mobile phone, Wifi modem and an E-Ticketing card, which he later listed in the search list. However, DC Binay did not identify the Prosecution Exhibits 1 and 2 as the same mobile phone and the E-Ticketing card that PC Mika handed him over at the Police Station.
    
25. Accordingly, there is no evidence to establish that the mobile phone, Wifi modem and the E-Ticketing card that were given to SC Luke by PC Mika, were the same mobile phone, Wifi modem and the E-Ticketing card that were recovered from the car driven by the first accused. Therefore, there is no evidence to establish that the complainant identified the same mobile phone, Wifi modem and the E-Ticketing card that were recovered from the car driven by the first accused as the items stolen from her. Accordingly there is no evidence to establish that the Prosecution Exhibits 1 and 2 were recovered from the car driven by the first accused.
    
26. In view of these findings, I am satisfied that there is no evidence to establish that the Prosecution Exhibits 1 and 2 were recovered from the possession of the first and second accused. Hence, there is no evidence to establish that the first and the second accused were the two perpetrators who robbed the mobile phone, Vodafone Huawei Wifi Modem and the E-ticketing card of the complainant.
    
27. Accordingly, I am satisfied that there is no evidence of identification of the two accused in order to link them to this offence of Aggravated Robbery. Therefore, I find the two accused not guilty of Aggravated Robbery as charged in the information pursuant to Section 231 (1) of the Criminal Procedure Act and acquit them for the same accordingly.
    
28. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Suva
26^th July 2019

Solicitors
Office of the Director of Public Prosecutions for the State.
Accused 1 In Person.
Office of the Legal Aid Commission for the 2^nd Accused.