State v Damaso [2019] FJMC 68; Criminal Case 770 of 2017 (29 April 2019)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case : 770 /2017

STATE
v
TANIELA DAMASO

For the Prosecution : WPC Siteri and PC Sharma
The accused : In person
Date of Hearing: 25^th of April 2019
Date of Judgment : 29^th of April 2019

JUDGMENT

1. The accused was charged with following offences in this court:

1^st Count
Statement of Offence (a)
BURGLARY – Contrary to Section 312 (1) of the Crimes Act No. 44 of 2009.
Particulars of Offence (b)
TANIELA DAMASO on the 15th day of April, 2017 at Nacokaika Village, Naitasiri in the Central Division, entered into the dwelling house of AVOROSA NIMACERE as a trespasser with intent to commit theft

2nd Count
Statement of Offence (a)
THEFT: Contrary to Section 291(1) of the Crimes Act No. 44 of 2009.
Particulars of Offence (b)

TANIELA DAMASO on the 15th day of April, 2017 at Nacokaika Village, Naitasiri dishonestly appropriate (stole) 1 x Flat screen TV band LG valued at $2,000.00, 1 x DVD Deck brand Philips valued of $3,237.00 the property of AVOROSA NIMACERE with intention to permanently deprive the said AVOROSA NIMACERE.

2. The accused pleaded not guilty wherefore this proceeded for the hearing. The prosecution called 03 witnesses and for the defence the accused elected to remain silent. At the conclusion of the hearing both parties opted not to file closing submissions and indicated that they would rely on the evidence.
3. I would first summarize the evidence presented by the prosecution.
4. PW1 , Avorosa Nimacere said he was staying in Nacokaika village and on 15^th April 2017 was in hospital attending to his sick son. When he returned in the morning, he noticed the lock in the door of his house missing. When he went inside he noticed the LG TV and deck missing. Total values of the missing items were $3237.00 and later the police brought the TV back to him. PW1 identified the TV and this was marked as MFI-1.
5. PW2 , Taniela Naivakavodo bought a TV in November 2017 from one Taniela. He came and told PW2 that he was having problems and wanted to sell his TV. PW2 bought it for $150.00 and later the police came and recovered the TV from him. PW2 identified the accused as the person who sold the TV on that day and also identified the MFI-1 as the item.
6. In cross-examination by the accused PW2 confirmed the accused sold the TV. Answering to the question raised by this court the witness said he has seen the accused number of times before the incident in the billiard shop and he came in the morning and afternoon to discuss about the TV. The accused was given chance again to cross-examine the witness and in that said he said morning he came to discuss about the deal and he also identified the accused in the police station.
7. In re-examination also the witness said the accused came around 9-10am morning and he knows him from the billiard shop.
8. PW3 DC Amani conducted the caution interview of the accused and also recovered the stolen TV and this was marked as PE1. He also prepared the search list (PE2) and also arrested the accused from the village of the complainant. Answering to the questions asked from this court the officer said he recovered the TV from the PW1’s house after he brought it back from PW2’s shop.
9. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

10. The accused is charged with one count of Burglary and one count of Theft and the prosecution has to prove beyond reasonable doubt the following elements :

1^st Count

1. The accused;
2. On 15/04/2017 entered in to the dwelling house of PW1;

100. As a trespasser with intent to commit theft.

2^nd count

1. The accused;
2. On 15/04/2017 dishonestly appropriated the properties;

100. Of the complainant ;

4. With the intention of permanently deprive him of said properties.

11. According to PW1 whilst he was away attending to his son who was sick someone broke in to the house and stole his LG TV and Deck valued at $3237.00. From this evidence I find the prosecution has proved beyond reasonable doubt all the elements of both counts apart from the identity of the accused.
    12. The accused is denying committing both offences. The prosecution is relying on doctrine of recent possession to prove this case against the accused.
    13. According to the “doctrine of recent possession”, when a person is found in possession of recently stolen property, and cannot provide a reasonable explanation for that fact, the jury may infer that he or she either stole the property or received the property knowing that it was stolen (Bruce v R [1987] HCA 40; (1987) 74 ALR 219; Trainer v R [1906] HCA 50; (1906) 4 CLR 126; R v Langmead[1864] EngR 47; (1864) Le & Ca 427).
    14. In R v Schama&Abramovitch (1914) 11 Cr App R 45; R v Short &Ors (1928) St R Qd 246; R v McCarthy (1984) 13 A Crim R 13; Gilson v R [1991] HCA 24; (1991) 172 CLR 353; R v Connolly (No 2) [1991] 2 Qd R 661; R v Ugle (1989) 43 A Crim R 63) it was held that this principle can be applied for armed robbery and burglary too.
        15. This principle has been applied in Fiji also .In In State v. Cakau [2011] FJHC 249; HAC143.2007 (6 May 2011) it was held as follows:

“6. The doctrine of 'recent possession ' furnishes a legal and factual basis to found a criminal prosecution. The underlying principle in the doctrine is that a person, who is in possession of stolen goods soon after a theft or an associated offence, implicates him in the act of receiving [stolen goods] or in the act of theft itself or in associated offences (R v. Garth [1949] 1 AER 773; R v Raviraj (1986) 85 Cr App R 93).

The prosecution, for it to be benefitted from the application of the doctrine, must prove that:

(i) The accused possessed the goods;

(ii) The goods possessed by the accused were the subject matter of the offence, as complained to by the complainant; and,

(iii) There is no explanation from the accused in regard to his possession of the suspected goods.”

16. Accordingly before the court can draw an adverse inference from the accused’s possession of recently stolen property, it must be satisfied of three matters:
    1. That the accused was in possession of property;
    2. That the property was recently stolen; and
    100. That there was no reasonable explanation for the accused’s possession of the stolen property.
17. PW1 in his evidence identified PE1 as the TV that was stolen from his home on 15/04/2017. PW2 said this TV was sold to him by the accused in November 2017. Since the line of cross-examination of the accused was trying to show it was mistaken identification by PW2 , I am going to apply Turnbull guidelines as laid down by Court of Appeal of England in R v Turnbull (1977) Q.B.224.
    18. Lord WidgeryCJ in R v Turnbull(supra) said :

“Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

19. Accordingly when considering identification evidence the court has to consider the following grounds:

(i) has the witness known the accused before?

(ii) For how long did the witness have the accused under observation and from what distance?

(iii) Was it more than a fleeting glance?

(iv) In what light was the observation made?

(v) Was there any obstruction to his view?

20. Having applied the above guidelines if the Court is satisfied beyond reasonable then it can rely on the identification of the accused.
21. PW2 said he has known the accused before this incident as he used to come to the billiard shop as seen him number of times there. Even on that day the accused met him twice, one in the morning to discuss about the deal ad evening to sell the TV. I am satisfied about the lightning conditions also considering the times. Hence I am satisfied beyond reasonable doubt it was the accused who sold the stolen TV (PE1) to PW2 in November 2017.
22. From these evidence I am satisfied beyond reasonable doubt:
    1. The accused was in possession of the LG TV (PE1) before sold to PW2;
    2. That it was recently stolen from the PW1’s house.
23. The accused has remained silent in this case and this is his right under the Constitution and I am not going to draw any adverse inference from that.
24. But having considered the totality of evidence in this case I find there is no reasonable explanation about how the accused acquired this stolen TV.
25. The IO also said the accused was from the same village as the complainant.
26. Hence only reasonable inference I can draw in this case in view of the accused in possession of stolen TV is that he broke in to the place of the complainant and stealing it from there on 15/04/2017. Even though there is some confusion about the place where this stolen TV was recovered, I find this has not raise doubt about the prosecution version.
27. Accordingly I am satisfied beyond reasonable doubt the accused committed these offences.
28. I find the accused guilty for this charge and convict him.
29. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate