State v Tuibusa [2020] FJMC 130; Criminal Case 556 of 2018 (10 June 2020)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
CRIMINAL JURISDICTION

Criminal Case No: 556 of 2018

BETWEEN : THE STATE

AND : RATU OSEA TUIBUSA

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Trial concluded on : 2^nd June 2020
Date of Judgment : 10^th June, 2020

Sgt. Frances for Prosecution
Mr. Mudunivalu for Accused

JUDGEMENT

1. The accused Ratu Osea Tuibusa is charged for one count of Burglary contrary to section 312(1) of the Crimes Act 2009 and one count of Theft contrary to section 291 (1) of the Crimes Act 2009.

Count 1

Particulars of the Offence

Ratu Osea Tuibusa on the 22^nd day of April, 2018 at Nadi in the Western Division, entered into the dwelling house of Miriam Tupou as a trespasser with intent to commit theft.

Count 2

Ratu Osea Tuibusa on the 22^nd day of April, 2018 at Nadi in the Western Division dishonestly appropriated 1 x Samsung J5 Pro mobile phone valued at $699.00 and assorted clothes valued at $150.00, all to the total value of $749.00, the property of Miriama Tupou with the intention of permanently depriving the said Miriama Tupou.

3. BACK GROUND

3.1 The accused was produced in court from police custody and was charged on the 30th April 2018. He opted to obtain assistance of the Legal Aid and therefore the plea was differed. On the same day, he was released on bail.
3.2 Accused pleaded not guilty for both the charges against him on the 22^nd June 2018.
3.3 Trial commenced on the 29^th August 2019. On this day the prosecution called PW1 DC 3292 Jesoni Naisoro to give evidence and through him tendered to court the Statement of the accused at the Caution Interview marked as P.Ex1.
3.4 Further trial was fixed for 31^st October 2019 on which date the prosecution informed court that the main complainant of this case Ms. Miriama Tupou has gone off to Suva and her present hereabouts are not available in order to summon her to court. Therefore, prosecution closed its case without calling any further witnesses.
3.5 Then, the defence counsel moved to make an application for ‘No case to answer’ and 21 days were granted for the same. However, on the 13^th of March Defence counsel informed court that they would withdrew their aforesaid application and therefore, the case was fixed again for further trial.
3.6 On the 2^nd of June 202, the Defence Counsel informed to court that the accused wishes to remain silent and also would not call any witnesses for the defence and therefore the trial was concluded.

4. THE LAW

4.1 The accused in this case is charged with two counts one under Section 312(1) of the Crimes Act 2009 and the other under Section 291 (1) of the Crimes Act 2009.

4.2 Section 312 of the Crimes Act 2009 provides that;

1. 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.

Penalty — Imprisonment for 13 years.

2. For the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of burglary.
   

4.3 Elements that need to be proven by the prosecution in a charge of Burglary are;

1. The accused has entered or remained in a building as a trespasser.
2. The said accused had an intention to commit theft of a particular item of property in the building.
   

4.4 Section 291 (1) of the Crimes Act 2009 provides that;

1. A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.

Penalty — Imprisonment for 10 years.

2. For the purposes of this Decree an offence against sub-section (1) is to be known as the offence of theft
   

4.5 Elements that need to be proven by the prosecution in a charge of Theft are;

1. The accused has dishonestly appropriates property belonging to another.
2. The said accused had an intention of permanently depriving the other of the property.

4.6 Section 57of the Crimes Act states that;

1. The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
2. The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
   

4.7 Section 58(1) states that “A legal burden of proof on the prosecution must be discharged beyond reasonable doubt”.

4.8 The burden of proof lies on the Prosecution and in this case the prosecution has to prove beyond reasonable doubt the following elements to secure convictions in both the charges.

1. The accused has entered or remained in the dwelling house of Miriam Tupou as a trespasser on the 22^nd day of April, 2018;
2. He had an intention to commit theft of a particular item of property in the building;

100. He has dishonestly appropriated 1 x Samsung J5 Pro mobile phone valued at $699.00 and assorted clothes valued at $150.00, all to the total value of $749.00, the property of Miriama Tupou; and

4. He had the intention of permanently depriving the said Miriama Tupou of the said property.
   

EVALUATION OF EVIDENCE

5. Prosecution’s Evidence

5.1 PW1 DC 3292 Jesoni Naisoro, the only witness who gave evidence for the prosecution stated to court that he was the officer who conducted the Caution Interview of the accused and that he could identify the statement of the accused which he recorded. He tendered to court the Statement of the accused at the Caution Interview marked as P.Ex1.
5.2 Upon perusal of the statement of the accused marked as P.Ex1 it is evident that the accused has admitted the J5 Pro mobile phone which belong to Miriam Tupou was found in his possession. However, he has gone on to explain that the said mobile phone and some T shirts have been sold to him by one Itaukei man and that he has paid the said man $15.

6. Analysis of the Evidence and the Law

6.1 According to PW1’s evidence the statement of the accused at the Caution Interview has been recorded by him. He has not given evidence in regards to any other fact.

6.2 The facts that can be found out from the Caution Interview Statement of the accused are only that the accused has admitted the possession of the stolen property of the complainant and that he has explained how he received the said goods from another man and how he paid money for the goods.

6.3 No other evidence have been adduced by the prosecution in order to prove that;

• the accused has entered or remained in the dwelling house of Miriam Tupou as a trespasser on the 22^nd day of April, 2018; or
• He had an intention to commit theft of the stolen property; or
• He had dishonestly appropriated 1 x Samsung J5 Pro mobile phone valued at $699.00 and assorted clothes valued at $150.00, all to the total value of $749.00, the property of Miriama Tupou; or
• He had the intention of permanently depriving the said Miriama Tupou of the said property.
  

7. Conclusion

7.1 As per all the evidence that were placed before this court, it is clear that the accused has been in the possession of a Samsung J5 Pro mobile phone and some assorted clothes which did not belonged to him. However, it is not proven that the accused has entered or remained in the dwelling house of Miriam Tupou as a trespasser on the 22^nd day of April, 2018, nor that he had an intention to commit theft of the stolen property, nor that he had dishonestly appropriated, nor that he had the intention of permanently depriving the said Miriama Tupou of the said property.

7.2 Therefore, this court is unable to be satisfied that the prosecution has managed to prove beyond reasonable doubt that the accused has committed Burglary contrary to section 312(1) of the Crimes Act 2009 or Theft contrary to section 291 (1) of the Crimes Act 2009.

8. Accordingly, I acquit the accused from both the charges against him.
9. 28 days to appeal.
   

DATED at Nadi 10^th day of June, 2020.

.........................................
Nilmini Ferdinandez
RESIDENT MAGISTRATE