Regina v Fulaburi [2011] SBMC 15; Criminal Case 73 of 2010 (17 October 2011)

IN THE CENTRAL MAGISTRATE COURT

Criminal Case No. 73/2010

REGINA

Vs

NOEL FULABURI

Prosecution: Sgt L Sandy
Defence: Mr. Hubert Fugui

Date of Hearing: 16^th, 17^th, 18^th February 2011
& 13^th, 14^th September 2011

Date of Judgment: 17th October 2011

JUDGMENT

(1) The defendant is charged with 2 counts of receiving which read as follows:

Count 1: Statement Of Offence

Receiving contrary to section 313 of the Penal code.

Particulars of Offence

That Noel Fulaburi between 4 December 2009 and 19 January 2010 at Honiara in the Guadalcanal Province received property namely 30 LCD screens, 2 fax machines, 9 speaker sets and 1 laptop bag knowing the said property to have been stolen or obtained in circumstances that amounted to a felony namely warehouse breaking.

Count 2: Statement of OFfence

Receiving contrary to section 313 of the Penal Code.

Particulars of offence

That Noel Fulaburi between 13 January and 19 January 2010 at Honiara in the Guadalcanal Province received property namely a white LCD Samsung Monitor knowing the said property to have been stolen or obtained in circumstances that amounted to felony namely office breaking.

(2) That the defendant is the manager of the City Motel, Honiara. Although it is owned by his father Patteson Fulaburi, he has full control and responsibility for its operation and management as his father lives in North Malaita in Maluu.

(3) That on 19/1/10 the police raided the defendant's motel after receiving information that he had bought stolen properties and prior to the raid the police obtained a search warrant to search his office and rooms 13, 16 & 25. The police party that carried out the raid comprised of DC Colin Ramosalu, PC Raymond Togapada, Roy Sade, Sgt Jonathan Bane, PC Linda Iro, PC Boaz Kukuti, forensic officer David Kusapa and 4 PPF officers.

(4) Upon arrival at the City motel DC Ramosalu met the defendant and he authorized the police to carry out the search and the defendant's office and room 13 which he was occupying together with rooms 16 & 25 which were used as store rooms were searched.

(5) A white LCD Samsung monitor was found in the defendant's office under a desk and the cable was cut off. This white LCD monitor was seized by the police. Lots of items were seized from rooms 13, 16 & 25. The complete list of items is shown in Ex P7 and Ex P7(a). There were lots of LCD monitors found in the sealed boxes which had AUSPAC labels outside the boxes. Following the seizure of the items the defendant was arrested and was brought to the Central Police Station together with all items.

(6) Having arrived at the Central Police Station the police got in contact with the Church of Melanesia which was broken into on 14/1/10 to see if any of the properties seized belonged to it. Alick Bebeu (PW10) identified the white Samsung monitor as belonging to the church. He identified it because the cable had been cut with a sharp object and cable left behind in the office matched with the piece of cable attached to the monitor. This computer was bought from Solo Soft in January 2008 for $11500.00.

(7) DC Ramosalu also got in contact with the manager of Solo Soft and obtained a copy of the receipt including payment voucher together with the serial number AUB528041Y but he was unable to say whether the white Samsung monitor had the same serial number.

(8) John Faurott (PW11) the IT manager for the Church of Melanesia recognized ExP1 as relating to white Samsung monitor as he had obtained the quotation and he further stated that the Church had only one white Samsung monitor.

(9) The police also called Amon Baibuke (PW6) the manager of Auspac and he visited the police station on 19/1/10. He identified ACER LCD screens and V719 LCD screens. On 27/1/10 he provided the police with a complete list of items that were missing from his premised which were subjected to 2 break in – (on 5/12/09 & 15/12/09). This list was prepared by identifying the serial numbers and in that list he stated that he identified 29 ACER 20" LCD screens, 7 x V719 wide screens 48.4cm, 2 Panasonic fax machines, 9 speakers and 1 lap top bag. I believe the 9 speakers and lap top bag had no serial numbers but he was able to identify these speakers and the lap top bag as belonging to AUSPAC. He stated that none of the LCDs were put in the store for sale.

(10) On 15/12/09 Alex Lamae's (PW1) taxi was hired by a girl and a boy and he was asked to drive to City Motel where the boy got off and the girl remained in the taxi. He was asked as to how much he will charge for 1 hour and he said $70.00 and that boy came with 2 other boys and they drove to Ngossi Valley next to Alex Bartlett's place where 2 boys got out and PW1 waited for more than 1 hour with the girl and one other boy and they returned with the boxes. He was unable to say how many boxes were loaded but the boxes were flat and looked like they had screens in them. Having loaded the first lots of boxes they went to get some more.

(11) Adrian Labu (PW2) was at home and he saw a boy carrying boxes which had computer screens when he saw this boy again he threw a stone at him. He also saw a car and suspected that somebody had came to steal so he took out his torch and went down to the car but before he reached the car it drove off.

(12) Later PW2 got into his taxi and followed this car and he caught up with it at the Town Ground and saw the number plate of AB1041 and recognized the driver as Alex Lamae who was his Wantok and he saw 1 girl and 3 boys in the car and he followed this car to City Motel where he saw the boys unload the boxes. He was unable to recognize the boys or the girl. Later PW2 spoke to Alex (PW1) and asked if the boys stole anything and he said he did not know. On 16/12/09 he saw 2 computer boxes with computer screen behind his garage and he called some people from Ausmart to take it away. He said the boxes had Ausmart name and he spoke to a person called Ken.

(13) The defendant was interviewed by the police on 20/1/10 at 8.30am (ExP3) and he freely participated in the record of interview. He was questioned about the break in at AUSPAC on 5/12/09 and 15/12/09 and he said that he had no knowledge about it. He was questioned about the LCD screens and the questions and answers went as follows:

Q31: Police during search conducted at your premises at City Motel. They confiscated 29 computers LCD screen still in boxes. These said boxes were all marked with AUSPAC stickers. These LCD screens were located stacked in room 16 and 25 of the hotel room. Who owns this computer LCD monitors?

A31: These properties which were stored and confiscated in the premises I live, so in my mind I think they must be mine.

Q32: When you say that I think it must be mine its indicated to us Police that you have not certain about the properties. What do you mean about the answer?

A32: Basically what I am trying to mention here was that, since that the items Police confiscated were in my premises, definitely the properties are mine.

Q33: Where were the boxes Acer LCD computer screen which marked with AUSPAC stickers you bought from?

A33: Definitely from AUSPAC store, because that's the only store that has the particular label here in Honiara.

Q34: How many did you bought for a particular Acer screen computer at AUSPAC?

A34: At this stage of interview I will not able to tell you the exact. What I only do is sending my boys. I gave them lump sum of money and they search in all the shops in Honiara for cheaper ones fits the amount I gave to them to pay in the shop.

Q35: According to the Police investigation that these 29 boxes of LCD Acer screen were marked with stickers of AUSPAC only, how do you manage to in possession of these said boxes, while according to the company that not at any time were large quantity or bulks of these similar item were sold out before they were stolen from its storage house. What are you going to say about this matter?

A35: At this stage of interview I did not aware of the operational matter of the company of how much stocks they have, where they store the computers, whether at home or their show room or either at their shop. According to my knowledge I only knew their shop which we purchase from.

Q36: How can you able to prove the Police that these Computer boxes which marked AUSPAC on it were bought from AUSPAC which the real dealer of the item?

A36: Any product that AUSPAC is putting on for display in its shop, its purposely meant for selling, regardless whether he puts stickers on it or not.

Q37: Do you think such business like this would not able to issue receipt to any of his customer who purchase products that is costing so much. For the purpose of issue a guarantee in case the property is not functioning of damage.

A37: Its part of their management decision on how they can deal or approach their customers regardless of what size of business and the type of business they provided.

Q38: Since you are one of the business holders with in the Honiara City, its an important part of the business that you secure your own business in terms of criticism that may rise in future, besides for the purpose of retire your business or auditing your business. What are you going to say about handling receipt in your business?

A38: No.

Q39: What is your purpose of purchasing these computer items specifically LCD Acer screens?

A39: My purpose now is to run an internet café in the motel. This internet café is a private one that would be own by me, which I apply to rent a room for it in the motel.

(14) The defendant was again interviewed by police on 26/1/10 (Ex P4 (a)). He was questioned about the break-in at the Church of Melanesia and the questioning went as follows:

Q31: As I already told you in the beginning of this interview about your involvement in that office break in the church of Melanesia headquarter, police strongly believe that you are co-offender in this. What will you say?

A31: No, no idea of this break-in.

Q32: Since you say that you do not know the break-in at the Church of Melanesia office who do you know that involve in this office break-in:

A32: I did not have any knowledge of who did the break-in.

Q33: What are you going to say in relation to the white Samsung LCD screen that police retrieved from your premises at City Motel?

A33: This white Samsung screen is one of the computer screens which I had previously used it and I decided to put it aside to rest it.

Q34: How long have you been using this Samsung before decide to put it aside?

A34: It had been there long time ago.

Q35: How much is it cost you to buy this Samsung LCD screen?

A35: About two thousand dollars eight hundred dollars.

Q36: What is the name of the shop that you bought this LCD Samsung screen from?

A36: I can't remember the name of the shop but I think I purchased it from one of the Chinese shop in China town.

Q37: Do you still have the receipt for the LCD screen?

A37: At the moment I misplaced it already

Q38: Through police investigation, police reveal that LCD screen is the one stolen from church of Melanesia office. What will you say?

A38: It's impossible.

(15) The defence case is that the defendant is not disputing that the various properties which is subject to the 2 charges were found in his possession but he and his witnesses stated that they had acquired these properties over a period of time from the customers' of City Motel who were unable to pay for their accommodation or other facilities provided like food and alcohol.

(16) The defendant is charged under S313 of the Penal Code which has two limbs:-

(a) Firstly, that he received property knowing the same to have been stolen,

(b) or secondly that he obtained it under circumstances which amounts to a felony namely ware house breaking in count 1 and office breaking in count 2.

(17) That prosecution bears the burden of proof to prove each element of the charge which is beyond all reasonable doubt.

(18) There is no evidence with respect to count 2 that it was the defendant who broke into the Church of Melanesia. Somebody was seen by the security officer and he gave a description of the person that he saw and following description no identification parade was conducted. Although the white LCD Samsung monitor was found in the defendant's possession that itself is not sufficient to draw the inference that it was the defendant who broke into the Church of Melanesia.

(19) With respect to count 1, there is evidence that some computer boxes were unloaded at the defendant's premises at City Motel on 15/12/09 on the night of the break in at Auspac warehouse. There is evidence that the boxes contained computer screens. There is also evidence that PW2 Adrian Labu found 2 boxes behind his garage on 16/12/09 and after that he contacted Ausmart. There is no evidence that Ausmart is same company as Auspac and there is no evidence that Ausmart was broken into – and therefore it would be unsafe to draw that inference that the boxes that were unloaded on 15/12/09 indeed came from the warehouse of Auspac.

(20) The defendant was found in possession of all items mentioned to in count 1 and the evidence is that none of these 36 LCDs were put in the store for sale and only 10 were put out for display whilst the remaining 90 were left in the warehouse and further the 36 LCDs were not sold to him. The defendant was quite adamant that he bought them from Auspac. But how could he do that?

(21) The defendant was found possession in of properties in count 1 and count 2 which were recently stolen. The defendant gave an explanation that he bought both the properties for count 1 from Auspac and for count 2 from a Chinese shop and I reject the explanations in light my earlier findings. I apply the doctrine of recent possession and find that the defendant received the items in count 1 and 2 knowing the same to have been stolen.

(22) I therefore find that the prosecution had proved its case beyond all doubt on counts 1 and 2 that the defendant received the items knowing the same to have been stolen, and I find the defendant guilty on both counts and I also convict him on both counts.

Shafi Khan
Principal Magistrate