Court of Appeal of Fiji

[13] In McAuliffe v The Queen (1995) 183 CLR108; 130ALR26; [1995] HCA 37; 79 A Crim R 229 it was reaffirmed that:

‘The understanding or arrangement need not be express and may be inferred from all the circumstances’

[14] The prosecution evidence shows that while the complainant (PW1) was walking home in the night a group of people travelling in a van had abducted him and assaulted him inside it. When he tried to escape they had caught him again and dragged him back to the van. His boots, bag, money and the phone had been robbed inside the van. PW 3 who had heard cries came out to see a group of people assaulting a person whom he identified as the complainant at the back of the vehicle. He had come to his aid but he too had been assaulted by the group. However, at his instance the van had been stopped by PW5 (police officer) and directed it to Nayavu community police post where the witness met the complainant looking frightened. Both PW5 and PW6 had identified the appellant and his co-accused there. PW7 had searched the appellant’s house and recovered the gum boot and the backpack from his house. The appellant had suffered swelling and minor injuries that could have been caused by multiple punches. The appellant’s cautioned and charge statements too had been led in evidence.

[15] According to the appellant when he along with a group was returning in the early hours in a van they saw the complainant lying unconscious on the road. There was a gum boot and a bag beside him and they took him inside the van. He admitted having caught the complainant again when he attempted to flee and put him back inside the vehicle. The complainant was shouting for help. Then they delivered him to Nayavu police post. After they returned to the village the driver noticed the gum boot and the bag and the appellant had taken them home to hand them over later to the village headman. The complainant was already known to the appellant as Beca.

[16] The co-accused had also said in evidence that the driver of the van informed them about the items left behind in the van and they were given to the appellant. However, the driver (DW3) had said that he did not find anything in the van. But, he had said that they saw a man lying on the road and the appellant and co-accused brought him inside the van but not forced him inside the vehicle.

[17] The Magistrate had not believed the defense version because the group travelling in the van instead of handing the complainant over to Korovou police station or the hospital which were admittedly closer to where they ‘found’ the complainant, continued towards Nayavu police post. Secondly, the group failed to hand over the complainant’s items to Nayavu police post. According to PW5 the group in the van did not voluntarily arrive at the police post but he stopped them and directed the van to the police post.

[18] The Magistrate had rejected the appellant’s explanation for his recent possession of the items belonging to the complainant and drawn the inference from recent possession of complainant’s stolen property that he was involved in the robbery of the complainant.

[19] Although the appellant had said that they informed Nayavu police post that they got the bag and the boot, PW5 or PW6 did not support that position. Further, DW3 himself had stated contradicting the appellant and his co-accused that he did not find anything in the van.

[20] The cries raised by the complainant who was seen being assaulted inside the van supported by corresponding injuries coupled with the group chasing behind him to catch him when he attempted to escape from the group and even assaulting PW3 who came to check on the commotion make the defense story of trying to assist a man lying unconscious on the road incredible. It is also unbelievable that the appellant took the items belonging to the complainant home in order to hand over the same to the village headman on the following day. This appears to be an opportunistic crime committed by the group including the appellant in the early hours of the day on the complainant who was walking alone. Both parties had consumed liquor by the time of the incident but were fully aware of what they were doing.

[21] Therefore, given the facts and circumstances of the case, I do not think that the Magistrate had erred in inferring a joint enterprise and made the appellant criminally liable on that basis. He had come to that conclusion after considering the relevant provisions of the law and all the evidence. The fact that the appellant and his co-accused had failed to make any effort to stop the complainant being assaulted or also to prevent the others in the group dragging him back to the van for the second time were only two aspects among others considered by the Magistrate. For the appellant to be made liable under the joint enterprise it was not necessary that he should have assaulted the complainant causing him the injuries.

[22] Therefore, there is no reasonable prospect of success in this ground of appeal.

02^nd ground of appeal

[23] The Magistrate had not convicted the appellant on recent possession evidence alone. He had thoroughly analyzed all the evidence, guided himself correctly on the law and taken recent possession evidence as one of the items of evidence to convict the appellant. Since the Magistrate had rejected the appellant’s explanation for the recent possession of the complainant’s items he was free to draw the inference from that evidence on the complicity of the appellant in the crime.

[24] The Court of Appeal in Boila v State [2021]; AAU 049.2015 (4 May 2021) inter alia referred to the following two decisions on recent possession evidence and the possible inferences therefrom.

‘[19] R v Langmead (1864) Le & Ca 169 ER 1 ER 1459 Blackburn J stated at pages 441 and 1464 respectively:

'I doagre agree ... that recent ssion is not as vehement evidence of receiving as of stealing. When it has been shown town that the property has been stolen, andbeen found recently after its loss in the possession of thef the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.'

[20] DicksJ. C.J. and McIntyre, Le Dain and La Forest JJ. said in R v Kowlyk
[1988] 2 SCR 59:

‘The doctrine of recent possession may be succinctly statedn proof of the unexplained ined possession of recently stolen property, the trier of fact may--but not must--draw an inference of guilt of theft or of offences incidental thereto. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offence. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. The doctrine will not apply when an explanation is offered which might reasonably be true even if the trier of fact is not satisfied of its truth.’

[25] The Court of Appeal in Batimudramudra v State [2021]; AAU 113.2015 (27 May 2021) quoted Timo v State [2019] FJSC 1; CAV0022.2018 (25 April 2019) where the Supreme Court said:

‘[17] .......Indeed, this was a classic example of the application of that strand of circumstantial evidence commonly called “recent possession”. In cases where a defendant is found to have been in possession of property which has been stolen very recently, so that it can be said that he was in recent possession of it such that it plainly calls for an explanation from him about how he came to be in possession of it, and either no explanation is given, or such explanation as is given is untrue, the court is entitled to infer, looking at all the relevant circumstances, that the defendant stole the property in question or was a party to its theft. And if the property had been stolen in a burglary or a robbery, the court is entitled to infer, again looking at all the relevant circumstances, that the defendant took part in the burglary or the robbery in which the property was stolen: see, for example, Blackstone’s Criminal Practice 2016, paras F.63-F.64,appliapplied in Fiji in Wainiv The State&#16> [2006] FJCA 49 and&Rokodreu Stat&#160<#160[20">[2018] FJCA 209’