State v Nabukavou [2023] FJHC 52; HAC19.2022 (31 January 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 19 of 2022

BETWEEN : THE STATE

AND : SAIMONI NABUKAVOU

Counsel : Ms. Ali, N with Ms. Devi, A for the State
: Ms. David, L for the Accused

Judgment : 31^st January 2023

JUDGMENT

1. The Accused is charged with aggravated burglary and theft as follows:
   

COUNT ONE
Statement of Offence

AGGRAVATED BURGLARY: - Contrary to section 313 (1) (a) of the Crimes Act 2009

Particulars of Offence

SAIMONI NABUKAVOU and others between the 19^th and 20^th day of December 2021 at Raibevu Khalsa Road, Nasinu in the Central Division, in the company of each other, entered into the dwelling house of TEMALESI IRENA DOVUMATUA as a trespasser, with intent to commit theft.

COUNT TWO

Statement of Offence

THEFT: - Contrary to section 291 (1) of the Crimes Act 2009

Particulars of Offence

SAIMONI NABUKAVOU and others between the 19^th and 20^th day of December 2021 at Raibevu Khalsa Road, Nasinu in the Central Division, in the company of each other, dishonestly appropriated 1 x 9kg Hisense brand washing machine, 1 x electric dryer, 1 x rice cooker, 1 x egg beater, 1 x Philips brand home theatre, 1 x Panasonic microwave, 1 x 30 litre electric urn, 1 x kettle, 1 x cake tray set, 1 x set forks, 1 x set spoons, 1 x king size blanket, 1 baby mattress, 1 x 10kg bucket flour, 1 x 10kg bucket rice, 1 x 4 kg packet sugar, 1 x jewelry box containing assorted earrings and necklace, 1 x ladies purse, and 1 pair Asics brand canvas shoes black in colour, the property of Temalesi Irena Dovumatua, with the intention of permanently depriving Temalesi Irena Dovumatua of the said property.

2. He pleaded not guilty to both counts and the matter proceeded to trial.
   

Burden and standard of proof

3. The burden of proving the Accused person’s guilt rests with the Prosecution throughout. The burden is discharged when each element of the charge is proved beyond reasonable doubt.
   

Elements of aggravated burglary and theft

4. For aggravated burglary in Count 1, the Prosecution is required to prove that
   
   • the Accused
   • in company with one or more other persons
   • entered into the dwelling house of Temalesi Irena Dovumatua
   • as a trespasser
   • with intent to commit theft
     
5. To prove theft as alleged in Count 2, the Prosecution must prove the following elements beyond reasonable doubt:
   
   • The Accused
   • dishonestly appropriated
   • property belonging to Temalesi Irena Dovumatua
   • with intent of permanently depriving Temalesi Irena Dovumatua of the said property.
     
6. The following facts are agreed between the parties:
   
   1. Saimoni Nabukavou is a 24 year old construction worker of Tacirua Village, Nasinu.
      
   2. Sabeta Moi of 6 miles, Tacirua, Nasinu, on the 20^th December, 2021 at around 11.00am, saw Saimoni Nabukavou and others moving a washing machine into her neighbour Apisai Lomani’s house.
      
   3. The matter was reported to the Police and investigations were carried out.
      
   4. Saimoni Nabukavou was arrested on 13^th January, 2022 from his house at 6 Miles, Tacirua, Nasinu.
      
   5. Saimoni Nabukavou was interviewed under caution on 13^th January, 2022, at Valelevu Police Station. He opted to answer in Court during his caution interview.
      
   6. Saimoni Nabukavou was charged on 13^th January, 2022 for the offences of Aggravated Burglary contrary to section 313 (1) (a), and Theft contrary to section 291 (1) of the Crimes Act 2009.
      
   7. DC 5090 Inoke photographed the recovered items on the 19^th January, 2022. The Photographic Booklet is agreed and annexed as “A”.
      
   8. The Photographic Booklet will be tendered by consent.
      

Prosecution evidence

7. The Complainant gave evidence that on 8^th December 2021, she had left her home at Raibevu, Tacirua to go to Labasa for the Christmas and New Year holidays. Her husband remained at their home and left on 19^th December 2021 for Labasa, leaving the key with Semisi Raibevu who lived about two metres away.
   
8. On the morning of the 20^th December 2021, she received a call from Semisi Raibevu that her house had been broken into. She gave a list of things in her house to Semi Raibevu and asked him to check if they were still there.
   
9. He informed her that everything was missing from her house. She also received a call that morning from Semi Raibevu’s wife that someone had seen her washing machine and urn at a neighbour’s house in Tacirua.
   
10. She returned to Suva on 1^st January 2022 and discovered her house ransacked and empty. Louvre blades were missing from the sitting room and a pinch bar was found beside the house. The following items were missing from her home: 9 kg Hisense washing machine, a silver urn with a black lid, a dryer, rice cooker, Panasonic microwave, a pair of black Asics canvas, sets of spoons and forks, a cake tray set, a baby mattress, blanket, Philips brand home theatre, box of jewelry containing some earrings and necklace, and purse.
    
11. On 6^th January 2022, the Valelevu Police called her to identify a washing machine and urn found in the house of one Apisai Lomani at Tacirua.
    
12. She saw the items and confirmed they were hers. They were photographed and included in the photographic booklet tendered by consent in Court. She has since received the washing machine and urn back from the Police after an application in Court by the Office of the DPP.
    
13. Semisi Raibevu testified to receiving the keys to the Complainant’s house on 19^th December 2021, for him to look after it while she went to Labasa. The next morning they found the house open with things scattered around inside. He called the Complainant who gave him a list of things in the house for him to check. He checked and found that the items were missing from the house. He reported the matter to the Police.
    
14. Sabeta Moi was doing her washing at home on 20/12/21 at about 11am when she heard people talking. She looked through a gap in the wall and saw the Accused and some other people outside near her neighbor Apisai Lomani’s house. She came outside and saw them clearly: the Accused was with a person named Sailosi, Delai, two other boys and a girl. They were at the steps of Apisai’s house with a washing machine. She saw the Accused and Sailosi give the washing machine to Apisai. Apisai’s house was about five paces away from her house. She has known the Accused from childhood and identified him in Court.
    
15. She saw the Accused talking to Apisai Lomani and to Sailosi. She observed them for about 15 minutes. There were other items wrapped and placed on the ground but she did not know what they were. The next day she went to her brother’s house and found out that Tema’s house had been burgled and some items stolen. She told them she saw some of the stolen items at Apisai Lomani’s house.
    
16. She said the photographs of the washing machine shown to her in Court was the machine taken by the Police from Apisai Lomani’s house.
    
17. Apisai Lomani gave evidence that he was at home at Tacirua on 20 December 2021 when a group of boys called him outside. He recognized only one of them by the name of Saimoni, whom he identified as the Accused in Court. They brought some items, a white Hisense washing machine, an urn and a mobile phone that they wanted to sell to him. He asked the boys if the items were theirs and they said yes. He told them he could take the properties and the boys could come get them back from him when they had money. He paid $120 for the items and could not remember whom he gave the money to. The group then left the items with him and left. He confirmed the urn and washing machine in the photographic booklet tendered by consent were the things that the Accused and his group had brought to him on 20/12/21.
    
18. DC 5518 Arthur Nawaqa seized a Samsung mobile phone, a 9kg Hisense washing machine, and a silver electric urn from Apisai Lomani’s house on 5^th January 2022. He prepared a search list of the items. The list was tendered by consent. He confirmed that the photographs of the washing machine and silver urn in the photographic booklet tendered as PE1, are those of the items seized from Apisai Lomani’s house on 5^th January 2022. The items were then taken to the Valelevu Police Station where they were exhibited.
    

The defence case

19. The Accused said that on the 19^th December 2021, he had been at their family house at Tacirua, 6 Miles, next to their home. He had dinner, watched TV, then went to sleep around 7:30pm. After breakfast the next morning, he went to buy “suki” from one of the houses in the neighbourhood. On the way, he met Sailosi, Delai and two other boys whose names he did not know. They were standing around a washing machine and an urn, talking.
    
20. Delai called him to help carry the items to Apisai Lomani’s house. Apisai was to keep the items until Delai and his group had money then Apisai would return the items back to them. He did not know the items belonged to Temalesi until this case. He had agreed to help take the items to Apisai because the other two boys with Delai said that the items belonged to them. He believed the boys because they brought the items during day time and they were not drunk.
    
21. When they got to Apisai’s house, he said good morning to Apisai, left the machine and went to buy suki while Delai, Sailosi and the other two boys stayed back to deal with the items with Apisai. He said he does not know anything about the allegations of aggravated burglary and theft against him and had only assisted to carry the items to Apisai’s house.
    

Analysis

22. All the elements of the offences are disputed. The Accused person’s only connection to the washing machine and silver urn, he says, is that he had helped four other persons carry the items to Apisai Lomani’s home. He says he knows nothing about this case.
    
23. The Prosecution relies on the doctrine of recent possession. That doctrine may be explained in this way: If an accused is found with property very recently stolen and he fails to explain how he came to have it, or the explanation given is not true, the Court may be justified in inferring, looking at all the relevant circumstances, that the accused had stolen the property in question, or was party to its theft. (Timo v State Criminal Petitions No. CAV 0022 & CAV 0026 of 2018, 25 April 2019).
    
24. The Complainant left her home on the afternoon of 19^th December 2021. The house was discovered by Semi Raibevu and his son on the morning of the 20^th December 2021, to have been broken into. A list given by the Complainant to Mr. Raibevu of the things that should be in her house included a 9kg white Hisense washing machine and a silver coloured urn and other items. Mr. Raibevu made a check of the things in the Complainant’s home and discovered that the washing machine, urn, and other items missing.
    
25. The washing machine and urn recovered by the Police from Apisai Lomani’s house were identified
    
    1. by the Complainant as hers;
    2. by Apisai Lomani as the items brought by the Accused and a group of boys and a girl to sell to him on the morning of 20^th December 2021;
    100. by Sabeta Moi as the items she had seen the Accused and others take to Apisai Lomani’s house, and;
    4. by PC Arthur Nawaqa as the items he had seized from Apisai’s house.
       
26. On the evidence, I find it proved beyond reasonable doubt that the 9kg Hisense washing machine and silver urn, photographed in Prosecution exhibit 1, were items recently stolen from the Complainant’s home.
    
27. Any inconsistencies as to the time the burglary and theft were discovered, and the time the phones calls were made to the Complainant on 20^th December 2021, are immaterial.
    
28. I found the evidence of Sabeta Moi to be credible and reliable. She said she saw the Accused and others with him on that day taking a washing machine and urn to Apisai Lomani’s house. Apisai Lomani also gave evidence that the Accused had come with a group of boys and a girl to sell the washing machine and urn to him.
    
29. I find it proved beyond reasonable doubt that the Accused had been in possession of recently stolen properties on the morning of 20^th December 2021.
    
30. There is no direct evidence that the Accused and anyone else with him had entered the Complainant’s house as trespassers and stole the items from inside.
    
31. In Vakarusaqoli v State [2022] FJCA 8; AAU032.2017 & AAU040.2017 (3 March 2022) at [24], Prematilaka JA discussed the doctrine of recent possession as follows:
    

The legal position regarding recent possession was extensively discussed in two recent judgments of the Court of Appeal namely Boila v State [2021] FJCA 184; AAU049.2015 (4 May 2021) and Batimudramudra v State [2021] FJCA 96; AAU113.2015 (27 May 2021). These cases have considered several past decisions in this area of law and summarized some important principles relating to the doctrine of recent possession as follows.

(i) Upon proof of the unexplained possession of recently stolen property, the trier of fact may--but not must--draw an inference that the person in possession stole it (the thief) or he received it knowing that someone else had stolen it or of other offences incidental thereto according to the circumstances. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offences.

(ii) The inference is drawn from possession of recently stolen property rather than recently taking possession of stolen property.

(iii) However, before the court can draw the inference from the accused’s possession of recently stolen property, it must be satisfied of five matters: i. That the accused was in possession of the property; ii. That the property was positively identified by the complainant; iii. That the property was recently stolen; iv. That the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and the circumstances of the case, recent; v. That there are no co-existing circumstances, which point to any other person as having been in possession and;

(iv) The type of circumstances which will be relevant are the length of time between the taking and the finding of the property with the accused, the nature of the property and the lack of any reasonable or credible explanation for the accused’s possession of the property.

(v) The doctrine of recent possession is a rebuttable presumption of facts. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the accused, he is called upon to account for having it, and, on his failing to do so, it may well be inferred that his possession was dishonest, and that he was either the thief or the guilty receiver.

(vi) What is ‘recent’ is also to be measured against the surrounding evidence. The term “recent” depends on the nature of the property. Frequently circulated property such as bank notes remain “recently stolen” for a shorter period than less frequently traded objects like cars, books, clothes, electronic appliances etc.

(vii) In proving possession, the prosecution must establish that the accused had possession of the property in question, i.e. had custody of or control over that property and intended to have custody or exercise control over it. The fact that a third party has physical possession of the property does not mean it could not have been possessed by the accused. In this regard, the prosecution does not need to prove that the accused was actually caught with the property in his or her possession. It is sufficient to prove that the accused possessed the property at the relevant time.

32. In Timo [2019] FJSC 1; CAV0022.2018 (25 April 2019) the Supreme Court explained:

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 possession of it 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 untrue, the court is entitled to infer, looking at all the relevant 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.

33. Vakarusaqoli (supra) requires that before the Court can draw an inference from the accused’s possession of recently stolen property, it must be satisfied of five matters. I am satisfied that the accused was in possession of the property. The property was positively identified by the Complainant as being hers. The items would have been stolen sometime between the late afternoon of 19/12/21, and the morning of 20/12/21. I am satisfied beyond reasonable doubt that the time between the burglary and theft to the time the Accused was found with it, was recent.
    
34. The last matter for the Court’s consideration is whether there are any co-existing circumstances which point to any other person as having been in possession. Relevant circumstances according to Vakarusaqoli (supra) are: “...the length of time between the taking and the finding of the property with the accused, the nature of the property and the lack of any reasonable or credible explanation for the accused’s possession of the property...”
    
35. The Accused had possession of the washing machine within hours of the alleged offences. His explanation for it is that he was asked to help carry it to Apisai Lomani’s house and he did so. On the evidence, I do not consider his explanation to be reasonable or true. There were four other boys and a girl. The washing machine was only a 9kg Hisense washing machine and could have been lifted by only two boys, even one. An empty urn could be carried by a big child even.
    
36. The Accused would have the Court believe that four men/boys were needed to carry the machine. As I said, I find his explanation for being in possession of the washing machine neither reasonable nor believable.
    
37. He said he had believed the boys when they said that the items were theirs because it was daytime and because they were not drunk. Apisai Lomani on the other hand said that the boys that came to see him were drunk.
    
38. I accept Sabeta Moi’s evidence that the Accused had spoken to Apisai Lomani and had been there for about 15 minutes before leaving. I do not accept the Accused’s version of events that he had only left the washing machine at Apisai’s house and went on his way while Delai dealt with Apisai.
    
39. In such circumstances, Timo (supra), states that “...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.”
    
40. The washing machine and urn were unquestionably from the burglary and theft of the Complainant’s home just a few hours earlier. There being no reasonable explanation before the Court as to how the Accused had come to be in possession of recently stolen items, I am entitled to infer that he had taken part in the burglary and theft at the Complainant’s home between the 19^th and 20^th December 2021. The nature and number of the items allegedly missing from the Complainant’s home following the burglary and theft are such that it would not have been possible for the Accused to commit the offences and remove the items by himself without the help of others in the short time before the break-in was discovered, and the items presented at Apisai Lomani’s house. Their claim that the items belonged to them and the transaction with Apisai Lomani is proof of an intention to permanently deprive the owner of her property.
    
41. I find him guilty of both counts in the charge and convict him accordingly.
    

Siainiu F. Bull
ACTING PUISNE JUDGE

Solicitors:
Office of the Director of Public Prosecutions for the State

Legal Aid Commission for the Accused