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State v Kaisau [2005] FJHC 405; HAA0115J.2005S (4 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0115 of 2005
{Suva Magistrate’s Court No.: 1498 of 2002}

Between:

THE STATE
Appellant

And:

ISIRELI KAISAU
Respondent

Ms K. Bavou for State
Respondent in Person

Date of Hearing: 28th October 2005
Date of Judgment: 4th November 2005

JUDGMENT

This is the State’s appeal against acquittal. The petition of the Director of Public Prosecutions seeks to have the acquittal quashed and substituted with a finding of guilt and a conviction.

The Respondent was charged as follows:

Statement of Offence

Larceny from Dwelling House: Contrary to Section 270(a) of the Penal Code, Act. 17.

Particulars of Offence

ISIRELI KAISAU, between the 4^th day of December 2001, and the 5^th day of February 2002, at Suva in the Central Division, stole from the dwelling house of LOUIS NIEBAUER, 1 set of tool box with assorted tool value at $25,000.00, Assorted cooking utensils value at $1,650.00. 1 18-speed bicycle value at $1,000.00, 1 desk with chair value at $450.00, 1 dressing mirror value at $200.00, 1 fridge value at $500.00, a gas stove value at $250.00, 2 gas cylinders full value at $100.00, a electrical mixer value at $40.00, 3 piece settee value at $310.00, a bookshelf value at $120.00, 3 coffee tables value at $60.00, assorted tin stuff value at $50.00, 1¹/₂ case wine value at $220.00, 1 drawer value at $60.00, 2 electric fan value at $80.00, 82 kg yaqona value at $820.00, to the total value of $31,210.00, the property of the said LOUIS NIEBAUER.

On the 4^th of July 2002, the Respondent pleaded not guilty to the charge. There were many adjournments some of which were on the request of the defence and some of which were due to other commitments in the court diary. The trial finally commenced on the 11^th of August 2003.

The first prosecution witness was Louis Niebauer. He said that he came from the United States in 2000 and rented a flat at Arawa Road, Suva. He and the Respondent set up a business together for the farming of spices. It was a partnership. On the 4^th of December 2001 Louis Niebauer left for Samoa. He asked the Respondent to look after his flat and gave him his keys. The Respondent told him that he might live in it. The witness agreed. The flat was fully furnished and contained all the items specified in the charge.

There was correspondence between the Respondent and Niebauer between December 2001 and the first week of February 2002 Niebauer returned to Fiji on the 5^th day of February 2002. He had a spare key for his flat. He opened his flat and found that everything had been removed from it, bar a table. The total value of the missing items was $31,000.00. Niebauer discovered from a neighbour that the Respondent removed the items over 4 or 5 days from the 27^th of the 28^th of January 2002. The Respondent spoke to Niebauer on the 6^th of 7^th of February. The Respondent told him that he would return the items on the following Saturday, saying that they were at his home in Colo-i-Suva. He did not return them.

The matter was reported to the police. The police recovered items from the Respondent’s house, worth about $29,000.00. The items not recovered included yaqona worth $900.00, wine, shirts, cookware and gifts.

Niebauer then said in evidence: “I did not authorize the accused to remove the above properties from my flat. Accused claimed he was afraid the landlord was going to seize the properties for non-payment of rent. The rent was paid for January 2002 by my friends. There was no need to take my property and he refused to return it.”

Under cross-examination he agreed that $450.00 of the January rent was owed. He said he did not give the Respondent authority to take his property. He said he got a fax in Samoa from the Respondent but said he could not read it.

PW2 Edwina Viliame lived in the same block of flats at Arawa Road. She said that in January 2002, the Respondent came with four young men and took the property from Niebauer’s flat. The investigating officer Corporal Sakiusa Tuinakelo gave evidence that on the 23^rd of March 2002 he visited Niebauer’s flat and found it empty. He searched the Respondent’s house and seized the items belonging to Niebauer. Prior to the search, he had spoken to the Respondent who had told him where all the items were. He interviewed the Respondent under caution on the 30^th of May 2002. The Respondent told him that he had removed the property but that he had done so because Niebauer had asked him to do it on the telephone. He said he faxed Niebauer to confirm that he had taken the items to his own home. When asked what the reason was for taking the items, he said “The reason of taking all these items is when Louis told me that the rent of the said house was not paid, and he also requested me to try to get $500.00 cash from somewhere to pay off the rent.”

The Respondent was charged by Corporal Sakiusa. He made a statement saying:

“The reason of taking the items for safekeeping because Louis Niebauer had not paid the rent of his house. I had advised him, or otherwise the owner of the house will seize all his belongings. That is the reason why he gave the key of his house, he also wrote back to me saying that there [is] no money left for him to pay up the house rent and I had suspected that he is trying to play around with me, as far as our business is concerned.”

In re-examination, PW3, Corporal Sakiusa said that he had checked with Niebauer’s landlord about the payment of rent, and discovered that his rent had been paid in advance before his departure for Samoa.

The landlord, Himendra Chandra, gave evidence on the 25^th of August 2003. He said that Niebauer was his tenant and that he paid $450.00 a month from the 10^th of March 2001. On his departure for Samoa, he arranged with Himendra Chandra to have his rent paid by a third person Ramesh Chandra, who paid rent for December 2001 and January 2002. Chandra said that he had never advised the Respondent that Niebauer’s rent was outstanding, and did not advise him to remove his belongings from the flat.

There was a case to answer. The Respondent gave sworn evidence. He said that Niebauer had asked him to look after his flat and had given him the keys. He said that Niebauer told him his rent was outstanding and that one Mr. Bihi in Taveuni would send some yaqona to be sold to pay the rent. When no yaqona was forthcoming, Niebauer told the Respondent to pay the rent for December and January. The Respondent faxed Niebauer in Samoa. The record is silent on the contents of this fax. However, Niebauer then told the Respondent on the telephone, to remove the property from the flat. He then removed it to ensure the landlord did not seize it for non-payment of rent. He said he never intended to steal the property. Under cross-examination he said he couldn’t return the property, as he was sick.

There were several other adjournments of the case because the court was busy. On the 2^nd of April 2004, counsel for the Respondent withdrew on the ground of “lack of instructions”. The Respondent asked for more time to seek alternative counsel. He was represented by counsel (Mr. Naqase) on the 24^th of June 2004, but the trial continued to be adjourned because the Magistrate was not available. On the 22^nd of February 2005, the Respondent told the court he had no further witness. He was no longer represented by counsel.

The prosecution and the Respondent made closing submissions. Judgment was delivered on the 18^th of March 2005. After reviewing the evidence the learned Magistrate said (at page 27 of the record):

“After carefully examining the evidence, I have come to the conclusion that the prosecution has failed to prove beyond reasonable doubt that the accused, when he removed the complainant’s properties to Colo-i-Suva, did so with the intention of permanently depriving the complainant’s ownership thereof. The accused said, he removed Prosecution Witness One’s properties to secure the same. Prosecution Witness One gave custody of the possession in his flat to the accused, to look after while he was in Samoa. The two were business partners, since 2001. They knew each other well, and have together formed a company “Taro Export Limited”. In my view, their “wires crossed”. They misread each other. The complainant got $29,000.00 worth of his properties back. The accused denied ever stealing any of Prosecution Witness one’s property. In the end I have a lot of doubts on the guilt of the accused.”

He then acquitted the Respondent.

There is only one ground of appeal, that the learned trial Magistrate erred in law and fact when he failed to adequately take into account material aspects of the prosecution evidence in arriving at his judgment.

At the hearing of this appeal State counsel referred to the definition of larceny in Section 259(i) of the Penal Code, which provides, inter alia, that a person steals who without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away something with intent to permanently deprive. Section 259 also provides that a person may be guilty of stealing where he has lawful possession of a thing and he fraudulently converts it to his own use. Counsel said that it was not disputed at the trial that the Respondent removed the items and failed to return them to the complainant until a police search was conducted. What was in dispute was whether the complainant consented to the taking of the items. State counsel said that the complainant was unshaken on this point and that the evidence of the landlord was that there was no unpaid rent, nor a threat of eviction. In the circumstance there was no foundation for the Respondent’s alleged belief in consent. Further the failure to return the property, the disappearance of some of the items and the hollow ring to the Respondent’s version of the facts, should have led to a conviction.

Counsel for the Respondent said that the case hinged on the credibility of the complainant and the Accused, and that the learned Magistrate was entitled to hold, as he did that the situation was one of a lack of intention to steal, based on mistake of fact. He further said that the Respondent took the items openly and made no attempt at concealing the taking.

According to the evidence led at the trial, there were uncontradicted facts which pointed inescapably to the Respondent’s guilt. The first was that the Respondent did in fact take home the complainant’s belongings. The second was, that there was no threat to evict the complainant from the flat, nor was there any unpaid rent. The third was, that when the complainant asked the Respondent to return his belongings on the 6^th of 7^th of February 2002, he failed to return them. The fourth was, that the police eventually seized the items 2½ months later from the complainant’s home. The fifth was, that some of the items taken were not found and there is no explanation from the Respondent as to their disappearance. The sixth was, that the items were recovered, not from storage in the Respondent’s home, but in various rooms in the house, suggesting a conversion to his own use and benefit. For instance the furniture including a sofa and white desk were found in his sitting room, a soup kettle in his kitchen, a bicycle in his veranda and two pillows in his bedroom. The only items found in his garage were a tool box and a fan.

All this evidence, together with the complainant’s assertion that he never authorized the Respondent to remove the items from his flat, provided proof of the taking, the fraudulent intention and of the intent permanently to deprive.

Further the Respondent’s evidence was clearly questionable. He did not explain why he did not have the original fax that he sent to Samoa about the non-payment of rent. His evidence about the complainant claiming the rent was unpaid make little sense in the light of the landlord’s evidence that there was no unpaid rent. This latter evidence was not disputed by the defence when the landlord gave evidence. It is incomprehensible that the complainant should lie about being in arrears of rent, when there were no arrears. Further, the Respondent claimed only in cross-examination, that the complainant had no yaqona or wine in the flat. That was never disputed when the complainant gave evidence. The Respondent did not explain the failure to recover shirts worth $150.00, cookware worth $150.00 and gifts worth $300.00.

Finally, the Respondent said that he did not return the items because he was ill. However on the day his home was searched by the police (according to the search list, this was on the 17^th of April; 2002) the Respondent was at Vinod Patel and presumably not ill.

If the learned Magistrate had analysed the evidence of PW1 as opposed to that of the Respondent, it would have been apparent to him that there was ample evidence of a taking and carrying away and of a converting to his own use or benefit. Implied from the Respondent’s own conduct and from the disappearance of some of the items, is an intention to permanently deprive. Indeed even if he believed the Respondent that PW1 did consent to taking the items away for safekeeping, the Respondent’s subsequent undisputed evidence of a conversion to his own use, is proof of an intention to permanently deprive. Thus the prosecution case, even on the defence version of it, provided proof of guilt beyond reasonable doubt.

This was not simply a case which rested on the credibility of witness. Even on the Respondent’s version of the facts, there was a strong circumstantial case of larceny. This was not a case where the Respondent alleges that the complainant gave him possession and property in the items taken. It was never suggested that the items belonged to the Respondent, as was the case in R. v. Harvey [1787] EngR 9; 1 Leach 467. In that case the complainant intended property in a horse and possession of it, to pass to the accused. The accused’s failure to later pay for the horse did not constitute a larceny because property of the horse had passed to him. In this case, the prosecution submitted that having obtained possession of the items innocently, the Respondent fraudulently converted them to his own use.

The acquittal on the basis of the finding of not guilty is therefore quite contrary to the evidence. It constitutes an error of law and of fact. It must be quashed and substituted with a finding of guilt and a conviction. The case is remitted to the said Magistrate to hear antecedent evidence, mitigation and to proceed to sentence.

Nazhat Shameem
JUDGE

At Suva
4th November 2005