Regina v Pome [2011] SBMC 7; Criminal Case 287 of 2011 (28 June 2011)

IN THE CENTRAL MAGISTRATE COURT

Criminal Case No. 287/2011

REGINA

V

BRIAN POME

Date of Hearing: 21 & 22/6/11
Date of Ruling: 28/6/11
Prosecution: Ms Feneanganofo & Ms Rachel Olutimayin
Defence: Mr Hubert Fugui

RULING

(1) The accused is charged with 2 counts. He was initially charged with receiving stolen property contrary to S313 (1) of the Penal Code. The allegation being that he received 2 solar panels.

(2) During the course of the trial prosecution sought leave to file an additional charge of stealing contrary to Section 258 (1) of the Penal Code. In this charge, it is also alleged that the accused stole the 2 solar panels which is also subject to the charge of receiving stolen property.

(3) Upon completion of the case for the prosecution, the counsel for the defence has made a submission that there is no case to answer in respect of the charge of stealing.

(4) It is common ground that there is no evidence that the accused stole the 2 solar panels

(5) The prosecution has submitted that it is relying on the doctrines of recent possession in that the accused was found to be in possession of the 2 solar panels which was recently stolen.

(6) The 2 solar panels were obtained at Sasa hill. A police motor vehicle was used to obtain the solar panels and the police witnesses PC Fredrick Saravagi (PW2) and PC William Manehoua (PW3) were present when the 2 solar panels were loaded in the police vehicle by a person and later unloaded at the accused's house.

(7) PW3 William Manehoua had received a report of the 2 solar panels being stolen and had visited the property of the complainant and when the solar panels were put in the police vehicle he did nothing. He did not arrest the person who put the solar panels in the police vehicle nor did he arrest the accused.

(8) Upon his assistance, a police party went to the accused's house in the early hours of 16/9/10 and retrieved one solar panel.

(9) PW3 William Manehoua had formed the belief that the accused had received the solar panels and he conveyed his beliefs to PC Johnson Tautai who was allocated the duty to retrieve the solar panels from the accused's home. He was the only one who entered the accused's house and at the time the accused was very intoxicated. PC Tautai told him that he had come for an "official purpose" and the accused enquired as to the reason for the visit. PC Tautai told the accused that he had come to take the solar panels. The accused asked him to go and take the solar panels and PC Tautai refused to do so as he respected the accused's privacy as he was a police officer and later when it was handed over to him and he took possession of one solar panel he thanked the accused for his cooperation. Do you thank a suspect or do you arrest him?

(10) There is evidence that PC Tautai (See Ex P3) in the company of the accused as a Police Officer were attempting to locate the suspect who handed the solar panels to the accused and PW2 and PW3. The suspect was Allen Raymond and they were unsuccessful in locating him and later on the other solar panel was located at Henderson from a person by the name of Fox Naidu. This solar panel was recovered whilst the accused was in the company of PC Tautai and was the driver of the police motor vehicle.

(11) I think the prosecution's case is that after the solar panel was loaded in the police vehicle and unloaded at the accused's house he came to being in possession of the solar panels. Despite PW 3's suspicion of the accused being in possession of the 2 solar panels PC Tautai was not keen on attending to the accused's house that early morning and he felt that and it would be best if it was left till day break the following morning.

(12) The doctrine of recent possession was explained by Griffith CJ in Trainer v R [1906] HCA 50; (1906) 4 CLR 126 at 132 as follows:

"It is a well known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie the presumption is that he stole it himself but if the circumstances are such that as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence."

(13) The circumstances under which the solar panels were obtained by the accused clearly rebut the presumption that the accused stole the solar panels and I therefore uphold the submission of no case to answer and acquit the accused of the charge of stealing.

Shafi Khan
Principal Magistrate