IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 093 of 2008

Between:

JOELI TAWATATAU
Appellant

And:

THE STATE
Respondent

Hearing:	21ST November 2008
Judgment:	12th December 2008

Counsel:	Appellant in person
Ms S. Puamau for State

JUDGMENT

[1]	The Appellant was charged with office breaking entry and larceny and convicted after trial on the basis that he was in possession of 4 tabua stolen in the course of the break in. He appeals against conviction. The State opposes the appeal.

[2]	The charge read that on the 29th of May 2008 at Nasinu in the Central Division, the Appellant broke and entered the office of the Raintree Lodge and stole 6 tabua and other items valued at $10,922.13 the property of Thomas Davis. The case was first called on the 2nd of June 2008 and the Appellant waived his right to counsel. A hearing date was set after he pleaded not guilty. He was remanded in custody. The trial commenced on the 7th of July 2008. The evidence was that the security officer at the Raintree Lodge noticed that there was a break in at the restaurant at about 5.45am. He reported the matter to the Colo-i-Suva Police Post. The restaurant, kitchen and office doors had been forced open. On stock taking the items specified in the charge were found to be missing. The items missing from the safe were a sealed carton containing 6 tabua, a passport, a work permit, company documents and the resort master keys. The resort owner, Thomas Davis, had a photograph of the tabua which he showed to the police. Later the police showed him a tabua which he recognized. He said that this was the tabua stolen during the break in. It was marked with a name "ANA."

[3]	Police Constable Ifereimi Tauva gave evidence that on the 30th of May 2008 he received information that a group of youths were drinking since the previous night at the house of the Appellant. He advised Police Corporal Qase. Detective Corporal Qase gave evidence that on the 29th of May he was on duty and was informed that there was a break in at the Raintree Lodge. He was given information that the Appellant was involved, and was in possession of stolen properties. He organized a team to visit the Appellant’s house and search it. On a search he found a Tabua buried 10 metres away from the Appellant’s house, within his compound. He identified the same Tabua which had "Ana" written on it. Under cross-examination he said he was shown the place where the Tabua was buried by the Appellant’s brother, Samisoni Ledua. The Appellant’s fingerprints were not found on the Tabua.

[4]	Under cross-examination it was suggested to him that he had framed the Appellant. He denied it.

[5]	At the end of the prosecution case, the Appellant made a submission that there was no case to answer. The Court found that there was a case on the basis of which a reasonable tribunal could convict the Appellant. The Appellant gave sworn evidence. He said that on the 28th of May 2008 he was at home. At 3.30pm he did some digging in the garden and planted dalo. He came back from the garden at 5.30pm. He and his wife went to bed at 8.30pm. At 7am the next morning he woke up and went to his plantation.

[6]	Under cross-examination he denied that he had been drinking in the early hours of the 29th of May and denied that he fled when the police arrived. He said that he had been drinking on the 30th of May 2008. He denied stealing the tabua from the Raintree Lodge and burying it in his compound.

[7]	His evidence was supported by that of his wife Susana Talakoto, and of his brother Ilaitia Mavoa. He agreed that it was suspicious that the tabua was found buried in their family farm.

[8]	The prosecution’s closing submissions were on the basis that this was a circumstantial case and they had proven the case against the Appellant beyond reasonable doubt.

[9]	Judgment was delivered on the 22nd of July 2008. After summarizing the prosecution and defence case, he said at paragraph 14 of his judgment:

"In order to connect the accused to the crime, the prosecution relied on circumstantial evidence, and the inferences to be drawn therefrom. At the time of the office break in, a tabua (i.e. Prosecution Exhibit No. 1) was in the office safe for safe-keeping. The tabua and office safe were stolen, during the break in. As of today, the office safe has not been recovered."

[10]	He then said that the tabua was dug up 10 metres from the Appellant’s house on the 29th of May 2008. The Appellant fled when the police arrived to search his house and his elder brother showed the police where the tabua was buried. He then asked at paragraph 16:

"The question that does arise was: How did the tabua … travel from the stolen safe, which was last seen at Raintree Lodge on 29th May 2008, between 2.45am to 5.45am, to the accused’s compound? Why did the accused flee from his drinking party, when the Police arrive[d] to search his house on 29th May 2008? Why did the accused’s elder brother show the Police where the tabua was buried?"

[11]	He then concluded at paragraph 17:

"In my view, the accused was involved in the Raintree Lodge office break in and larceny on 29th May 2008, between 2.45am and 5.45am. The fact that the stolen tabua was found in his compound, 10 metres from his house, does speak volumes. In his evidence, he said he went to his garden, at about 7am on 29th May 2008. In my view, he went there to bury the stolen tabua. Then, he returned to the drinking party."

[12]	He then commented:

"It was more likely than not that they were consuming the $1,432.64 worth of liquor, previously stolen from Raintree Lodge."

[13]	He then rejected the defence evidence and found the case proven beyond reasonable doubt.

[14]	The Appellant appeals against the conviction on the basis that this conclusion was wrong in law and in fact. He said that there was no fingerprints found on the tabua, that there was no drinking party on the 29th of May but had been held on the 30th of May and that there was no direct evidence implicating him in the offence charged. He further said that the case should have been stopped at no case to answer stage.

[15]	The State opposes the appeal. Although State counsel agreed that the learned Magistrate did not refer to the test in cases of circumstantial cases nor to the doctrine of recent possession, but submitted that the evidence was compelling and that there was no other reasonable inference to explain the Appellant’s possession of the tabua other than the guilt of the Appellant.

[16]	The law on circumstantial evidence is now well-settled. Where the prosecution tenders evidence from a variety of sources none of which implicate the accused directly, the question to ask is whether, taking all the evidence together, the only reasonable inference is the guilt of the accused, and there is no other explanation possible which is consistent with the Appellant’s guilt.

[17]	The law on recent possession, is that when the accused is found in possession of recently stolen goods, and gives no explanation for such possession, he or she can be convicted either with the theft of those items or with receiving stolen goods. In these circumstances the evidential burden shifts to the Appellant to show the court how he came by the stolen goods.

[18]	The combination of these principles leads to a position that the court must direct itself that taking all the evidence together, including the accused’s lack of explanation for the possession of the stolen goods, is the only reasonable inference to be drawn, the guilt of the accused?

[19]	In this case, had the learned Magistrate asked himself this question, he would have come to exactly the conclusion he reached in paragraphs 16 and 17. Although there is no evidence that the Appellant was drinking the stolen liquor at the drinking party, the fact that there was a drinking party after a theft of $1,432.64 was yet another circumstances that he was entitled to consider in weighing up all the evidence. Most fundamental however was the presence of the tabua in the Appellant’s compound and his lack of an explanation for it.

[20]	No further evidence was necessary under the doctrine of recent possession. In these circumstances, the Appellant was rightly convicted.

Result

[21]	This appeal against conviction is dismissed. There is no appeal against sentence.

Nazhat Shameem
JUDGE

At Suva
12th December 2008