State v Afu [2006] FJMC 4; Criminal Case No 649 of 2005 (27 January 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 649 of 2005

STATE

V

MELE AFU

Prosecution: Sgt. J Wilson for State
Defence: Ms A Lata / Legal Aid Commission

RULING ON NO CASE TO ANSWER

The learned accused counsel has made a submission under S210 of the CPC at the end of Prosecution case. She submits that there is no case for the accused to answer on the following charges.

Larceny of Documents Contrary to S264 (C) of the Penal Code (2 counts) and alternative two counts of Receiving Stolen Property Contrary to S313 1(a) of the Penal Code Cap 17.

She submits the prosecution has failed to prove essential elements of the charge namely:

S264 (c)

i) That the documents were original

ii) That the accused stole

S313

(i) No evidence that "she knew at the time of receiving documents that they were stolen."

(ii) No intent shown by prosecution.

The prosecution on the other hand submits these were confidential documents not to be found in hands of ordinary members of the public. She knew documents had classified information which she kept for 5 years. The prosecution says it has proved all elements of the charges for a prima facie case against the accused.

In a no case submission, the onus is on the prosecution to satisfy the court that the evidence presented in support of the charges is sufficient to require the accused to make a defence.

Usually two basic accepted grounds for such a submission in Magistrates Court is:

1. When there has been no evidence to prove an essential element in the alleged offence.
   
2. When evidence adduced by prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable Tribunal might safely convict on it.
   

"- -The decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but or whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer. "__ Practice note (1962) 1 Q.B.D. All ER 448.

The learned defence counsel relies on the first ground that essential elements of the charges have not been proven.

The Prosecution under S.264 (c) have to prove:

(i) Any person

(ii) Steals whole or part

(iii) Any original document relating to the business of any office, or employment under Her Majesty and remaining in any office appurtaining to any court of justice or public office.

The prosecution evidence shows confidential document relating to RFMF and CAAF were given to the accused during the May 2000 coup in the parliament buildings precincts. The person giving the documents was a CRW soldier of RFMF and a relative of the accused. She was asked to securely keep the documents. She took it and kept it at her home in Koro Island in May 2000. The accused was brought in to Suva from Koro Island recently in March 2005 to be questioned in the investigation on destruction of the Fiji TV offices during May 2000 coup. During the search of her luggage she was found to be in possession of a bag containing the files and documents.

As an explanation in her caution interview she said the documents were given to her in parliament by her relative and a CRW soldier Salesitino for safekeeping. She came to know it was confidential documents to do with CRW and the Military, after reading it at Koro Island. She did not return it to the Military because of fear of being assaulted by the army.

EVIDENCE

The defence has admitted the documents were confidential in nature and belonged to the army and CAAF.

Were the documents original?

Exhibits 1 to 6 are classified documents of CAAF and RFMF. Exhibit 7 is the senate select committee report of submissions on the Fiji Intelligence Service Decree of 1990.

Exhibit 8 are photographs of CRW officers in training and from the army library. From perusal of all documents it appears to be copies of originals; photocopies mostly. Some are copy documents but are not the original. PW4 Viliame Waka of Civil Aviation also recognized the CAAF document to be his draft copy and the original of which was submitted to the Government authorities.

I permitted the copies to be admitted in evidence as the author was present in court. However, the section requires ‘original’ document which element has not been proven by the prosecution.

DID SHE STEAL?

The Penal Code defines theft.

S259 (1) A person steals who without consent of owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner there of:

Provided a person may be guilty of stealing any such thing not withstanding that he has lawful possession thereof if being a bailee he fraudulently converts the same to his own use or of any other person than the owner.

‘Owner’ includes part owner or person having possession or control - - -"

The evidence shows these documents were in possession of a CRW soldier Salesitino who was also a relative of the accused. He gave her the documents for safekeeping . Her intent at the time of taking was not to permanently deprive but to keep it ‘safely’. Evidence shows she kept it on her Island and brought it in a bag with her when police brought her for investigations regarding Fiji TV. case. The Prosecution have led no evidence to show if Salesitino was a loyal or a traitor to RFMF. They have not shown if files were stolen or brought by authority of the army to parliament. This court cannot assume facts which are crucial to satisfy the specific elements of the charges laid by prosecution.

Can I infer because of her possession; the section is satisfied?

Under the proviso as a bailee’ of the documents prosecution had to prove "she fraudulently converted it to her own use or use of person other than owner." The evidence led shows the technical nature of the documents, highly classified and secret which was only for use to expert hands with specific purpose. There is no evidence to show she used it or let any one else use it for their benefit.

Can it be said she had recent possession of the documents therefore prima facie evidence of theft?

The accused has given a reasonable explanation that she was given the documents by a CRW soldier Salesitino for safekeeping. This has not been denied by the prosecution. This soldier is now dead and could not give evidence on behalf of the prosecution. Further more, she kept the documents for 5 years and this certainly cannot be said to be recent possession.

So even on the doctrine of ‘recent possession’ the prosecution cannot succeed in saying it has made a case.

The documents given by a soldier in the circumstances of this case for safekeeping away from parliament in the midst of the may 2000 up heavel to the accused who takes it to Koro Island and keeps it safe for 5 years cannot be said to satisfy the elements:

i) She took without consent of owner which includes the CRW soldier who was in possession and control of the documents. Such possession by soldier without evidence cannot be said to be unlawful.

ii) Can’t be said to be done in Malafide or in bad faith.

iii) Had intent to deprive the owner permanently as she took it for safekeeping.

Can prosecution say she would have discovered real owners by taking reasonable steps?

This applies to ‘larceny by finding’ where the finder believes that the owner can be discovered by taking reasonable steps.

On facts here, the prosecution did not deny she was given the documents to be kept and she did not find it.

Upon whole of evidence the prosecution has not proved that the documents were stolen by the accused.

ALTERNATIVE COUNTS: (2) RECEIVING STOLEN PROPERTY.

Under S313 (1) (a) The Prosecution has to prove

1. Receiving
   
2. Property obtained by an act which constitutes an indictable offence.
   
3. Guilty knowledge.
   

The accused has admitted receiving the property.

Did she know it was stolen?

The prosecution evidence relies on nature of documents which was confidential and secret to the Army and CAAF. They say that the accused should have known in the circumstances that it was stolen documents.

Were documents obtained in such circumstances that a reasonable person would think it was dishonestly received or stolen?

The prosecution has not shown any such evidence. They have also not disputed the explanation of the accused in her caution as to how she came into possession and for the purpose which was safe keeping of the documents. There is also no dispute that it was given to her by a CRW member who was a RFMF soldier who would reasonably be expected to have possession of such a document of RFMF in the circumstances.

The evidence adduced by prosecution do not show, infer or deduce that the accused knew the property was stolen when she received it. Even section 315 of the Penal Code which deals with evidence on a charge of receiving is of no assistance to the prosecution.

So, even on the alternative count the prosecution has failed to prove the guilty knowledge that she knew the property was stolen either by direct or circumstantial evidence to make up a prima facie case.

CONCLUSION:

The other peculiar aspect of this case was that no report was ever laid that these properties were stolen or missing until it was found on the accused. However, for the purpose of these charges the defence accepted it belonged to RFMF and the CRW soldier handed it over to the accused as the person in possession or control.

It is noted, the importance of these security documents were invaluable to the nation. In wrong hands, it could have caused irreparable damage and be a cause of threat to the nation. The prosecution should seek assistance of the RFMF or CAAF legislations to consider if any relevant charges may be laid under it for future offences. Also if no such legislation exists, they should recommend new legislations be made for future safety and security of such classified documents in national interest.

I do not find the prosecution has led any evidence, direct or circumstantial touching on all elements of all the counts.

Upon the evidence adduced I would even go further to say that "no reasonable tribunal properly directing its mind to the law and evidence, might convict on evidence so far laid by the Prosecution in this case."

I find no prima facie case is made out for the accused to be called to defence. The case is dismissed and the accused acquitted.

Dated this 27th day of January 2006.

Ajmal Gulab Khan
RESIDENT MAGISTRATE