State v Vereti [2010] FJMC 190; Criminal Case 2012 of 2008 (16 November 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 2012 of 2008

STATE

v.

BEN JOHNSON VERETI

For Prosecution: Ms. LEWENI (DPP Office)
For Accused: Mr. Sharma N. (LAC)
Date of Judgment: 16th November 2010

JUDGMENT

1. Accused in this case is charged for committing Burglary an offence punishable under sec. 299 (a) and Larceny from a Dwelling House of Property to a Value Amounting to not Less than ten dollars an offence punishable under sec. 270 (a) of the Penal Code, Cap 17.
   
2. Three witnesses testified for the prosecution. At the end of the prosecution accused gave evidence on oath.
   
3. Prosecution is under obligation to prove the charges beyond reasonable doubt and the accused has to establish his defence on the balance of probabilities.
   

Elements to be proved by the prosecution

4. a). Burglary
   
   1. The accused,
   2. Broke and entered the dwelling house of another and committed a felony in that dwelling house
      

b). Larceny from a Dwelling House of Property to a Value Amounting to not Less than ten dollars

1. The accused took and carried away something capable of stolen.
2. Without the consent of the owner.
3. At the time of such taking, intended to permanently deprive the owner.
4. Value of the stolen item is more than $ 10.
   

Evidence of each witness

PW – 1

5. On the night of 28th November 2008, complainant was at home and at about 4 am he has got up to watch a rugby match telecasted in TV. When he was about to go to the sitting room, he has heard the burglar proof door fell down. He then realised that the door open and lights were on in the sitting room. Witness then saw a face popped in through the open door but he couldn't recognize the face as it happened very fast. Same time witness heard footsteps coming behind him and saw a boy wearing a blue basketball t-shirt running past through the sitting room door.
   
6. Witness then gave a chase and two boys were running about 70 meters ahead of him. He saw one boy wearing yellow-gold basketball t-shirt and the other wearing a blue basket ball t-shirt.
   
7. At about 5 am witness had reported the matter to the police. Then with the police officers witness had gone around the area in search of culprits in a truck. During the drive witness saw the accused with some youths wearing the yellow basketball t-shirt and the time was at about 7 am. Upon informing that fact to the police accused had been searched and a mobile phone belongs to PW-2 had been found in the possession of the accused.
   
8. Witness never refuted the fact that he only saw the face of the accused for a very brief moment and he only saw their backs while he was chasing them. Witness informed that he did not have an opportunity to remember the face.
   

PW -2

9. During the time of the incident witness had been sleeping in the house and she had been awakened by the PW-1, who is her brother. Then the witness had found that her mobile phone was missing and witness later identified the phone which had been recovered from the accused as her phone.
   
10. Witness accepted the fact that the mobile phone was a common phone which she had bought for $39 but informed the Court that the particular phone which is in the Court belongs to her as the touch pad of the phone is slack unlike in the other phones.
    

PW- 3

11. Witness was the officer who accompanied the complainant in search of the culprits in the police vehicle. Witness confirmed that while they were driving, complainant had pointed out the accused amongst a group of youths who had been drinking. During the search, witness had found a mobile phone from the accused person's possession.
    
12. Witness had recorded the caution interview and informed that accused had mentioned one "Timi" had given the phone to him. Witness had not recorded a statement from "Timi" but informed the Court when he met that person and he had refused any knowledge about the incident and had refused to give a statement.
    
13. At the end of the prosecution case, accused gave evidence on oath.
    
14. According to the accused that he was in the home and had gone out when his friend invited him to attend the barrel night at a bar. Cannot recall the time he went there but had stayed there for about 02 hrs. There after had gone to another night club with another friend but again cannot recall the time or how long he stayed there. Thereafter had gone straight to home and changed his cloths to a yellow basket ball t-shirt and ¾ pants. Again came back to friends who were drinking and there one boy close to him by the name of Timi, was trying to sell a cellular phone. When he was just holding the phone police came and arrested him.
    
15. During the cross examination accused admitted going home alone and the phone was in his possession when he got arrested. Accused denied breaking in and the theft.
    
16. However, accused admitted that phone was recovered in his possession only after he was searched by the police.
    

Analysis and Findings

17. This particular case is based on the circumstantial evidence. PW-1 identified the accused by the t-shirt he was wearing and he admitted that he did not see the accused properly or he could not remember his face.
    
18. According to the evidence, incident took place at about 4 am and accused was arrested around 7 am in the same day barely three hours after the incident.
    
19. On behalf of the accused, the ownership of the recovered phone has challenged but the defence could not prove that the particular phone belongs to the accused. PW-2 identified the phone as hers.
    
20. According to the accused, one Timi was trying to sell a mobile phone to him when he got arrested. However, there is no evidence to show that the accused tried to return that particular phone to Timi when the police officers arrested him. Accused admitted that phone was recovered after the police searched him.
    
21. Therefore, it is clear that the phone was in accused person's possession and he was not just holding the phone as accused mentioned in the Court. If the accused just holding the phone inspecting when Timi was trying to sell it to him, that particular phone should have been visible to others as it was in accused person's hand.
    
22. None of the friends mentioned by the accused supported the accused person's version of the incident and there is no evidence to support that a boy called Timi tried to sell a phone to the accused.
    
23. Even though the complainant could not clearly identify the accused at the incident, it is too much of a coincidence to believe that an innocent person had in his possession a stolen item, which had been stolen barely 03 hours ago and was wearing a t-shirt which is identical to what was wearing by the culprit at the crime scene.
    
24. Another piece of evidence which had not been challenged by the defence is that it was the PW-1, who pointed out the accused who was amongst a group of youths. PW-1 informed that the accused person's build and cloths were clearly on his mind. Interestingly, that very person complainant pointed out amongst a group of youths happened to be in possession of the mobile phone belongs to complainant's sister which has been stolen barely 03 hours ago.
    
25. Prosecuting Counsel assisted the court with the following decided case which dealt with the doctrine of recent possession. In Semesa Wainigolo vs. State [2006] FJCA 49, (28th July 2006), the Fiji Court of Appeal clarified the doctrine of recent possession where it stated:-
    

"... doctrine of recent possession which is that where property has been stolen and is found in the possession of the accused person shortly after the theft, it is open to the Court to convict the person in whose possession the property is found of that theft or receiving. It is really no more than a matter of common sense and a Court can expect assessors properly directed to look at all the surrounding circumstances which will be relevant are the length of time between the taking and the finding of the property with the accused person, the nature of the property and the lack of any reasonable or credible explanation for the accused's possession of the property. What is recent in these terms is also to be measured against the surrounding evidence.

Thus, possession on the day after a large theft or robbery of a single item stolen may be strong evidence of involvement in the principal offence but, if it was found some months afterwards, would be unlikely to result in conviction of the theft although it may still result in conviction for receiving stolen property."

26. Even though accused tried to shift the blame to some other person with regard to the ownership of the recovered phone, accused failed to establish his position.
    
27. Circumstantial evidence in this case very strongly pointed at the accused person. Based on the above-mentioned reasons I find accused guilty as charged.
    

On this Tuesday the 16th day of November 2010

Kaweendra Nanayakkara
Resident Magistrate