State v Mara [2015] FJMC 108; Criminal Case 534.2010 (20 October 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 534 of 2010

STATE

V

APENISA MARA

Prosecution : PC Monish
Accused : In Person

Judgment : 20 October 2015

JUDGMENT

1. Apenisa Mara, the Accused is charged with one count of Burglary contrary to section 312(1) of the Crimes Decree and an alternative count of Receiving contrary to section 306 of the Crimes Decree.
   
2. The particulars of the offences are that the Accused on 6th July 2010, in Labasa entered into the dwelling house and stole therein the following items; One Mangal Sutra valued at $800.00, one gold chain valued at $650.00, one gold thali valued $40.00, two ladies watch Casio and Titan brand valued at $800.00, ANZ cash cheque amounting to $186.00, one pair blue addidas canvas valued at $190.00, one Nokia mobile phone valued at $1,800.00 and $80.00 cash to the total value of $4,546.00 the properties of Kan Sami AND on 19 July 2010, at Savusavu dishonestly received stolen property, namely an addidas brand canvas, knowing the said to be stolen.
   
3. The Accused pleaded not guilty to the count of Burglary and to the alternative count of Receiving on 26 July 2010.
   
4. There are six hearing dates that have been vacated for this case and the trial finally proceeded on 12 August 2015.
   
5. The offence of Burglary is an electable offence and the accused rights of election has not been put to the Accused when his plea was recorded on 26 July 2010. The election was put to the Accused on 12 August 2015, where the Accused elected to be tried before the Magistrate Court. The charge of Burglary was re-put to the Accused on the same day where he maintained his not guilty plea.
   
6. The Prosecution called four witnesses, two civilian and two Police Officers. The Accused is the only witness for the Defence as he was defending his case.
   
7. The offence of Burglary, section 312 of the Crimes Decree state:
   

"A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building".

8. The offence of Receiving, section 306(1) of the Crimes Decree state:
   

"A person commits a summary offence if he or she dishonestly receives stolen property, knowing or believing the property to be stolen".

9. The standard of proof required in criminal case is "prove beyond reasonable doubt" and the onus is on the Prosecution.
   
10. There was no evidence adduced by the Prosecution to establish or prove that the Accused entered or seen inside or remain inside the house of the Victim. There was no evidence adduced to establish or prove that the Accused was or remain inside the house of the victim with intent to commit theft. The Accused was not charge with any offence of theft.
    
11. The evidence of the Prosecution is that the Victim saw the Accused wearing the stolen canvas which is one of item stolen from the victim's house. The canvas was produce as Prosecution Exhibit No. 1. The canvas was shown to the victim where the victim confirms that the canvas is his. In cross examination, the Victim agreed with the Accused that he has no proof that he bought the canvas from Jacks.
    
12. According to the Accused, the canvas was given to him by one Pita Koroicake. He exchanged the canvas with his brown Colorado canvas in Savusavu. Pita is the Accused school mate from Ratu Kadavulevu School.
    
13. There is no evidence adduced to prove that the Accused dishonestly received the canvas. There is no evidence lead to prove and establish that the Accused knows or believe that the canvas was stolen when he exchanged the canvas with Pita in Savusavu.
    
14. The Interviewing Officer in cross examination confirmed that he did not go to the Accused house to see if any of the items stolen can be seen at the Accused's home. The caution interview was tendered as Prosecution Exhibit No. 2, where it confirmed that search was conducted at the Accused house and no stolen items were seen in the Accused's home. The Investigating Officer in his evidence state that he had tried to locate this Pita, he had liaised with his counter parts in Suva and Savusavu and attempt and search is all negative.
    
15. In assessing, the evidence adduced by the Prosecution, I find that the elements of both the offences were not established and proven by the Prosecution. The Prosecution were not able to prove it case beyond reasonable doubt.
    
16. In my judgment, I find that the Prosecution has failed to prove it case beyond reasonable doubt and the evidence adduced is not enough and not sufficient to establish the elements of both the offences.
    
17. Accordingly, I find the Accused not guilty as charged and acquitted the Accused.
    

28 days to appeal

Cama M. Tuberi
RESIDENT MAGISTRATE