IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC   245 OF 2018

STATE

-v-

PENIONI  NAKAVULEVU

Counsel: 			Mr. S. Komaibaba with Mr. U. Prasad for Prosecution
Mr. A.K. Singh for Defence

Date of Summing Up : 	26 September 2019
Date of Judgment	:	27 September 2019

JUDGMENT

1.	The accused was charged on the following information before three assessors:
Statement of Offence

	BURGLARY:	Contrary to Section 312(1) of the Crimes Act of 2009.

Particulars of Offence

PENIONI NAKAVULEVU on the 11th day of June 2018 at Naselai Nausori, in the Eastern Division, entered into SINGHS SUPERMARKET as a trespasser with intention to commit theft therein.

COUNT TWO

Statement of Offence

	THEFT:  Contrary to Section 291 (1) of the Crimes Act of 2009.

Particulars of Offence

PENIONI NAKAVULEVU on the 11th day of June 2018 at Naselai Nausori, in the Eastern Division dishonestly appropriated 9 cartons of BH 10 cigarettes valued at $57,290.40, 2 carton of BH 20 cigarettes valued at $12,257.05, cash of $22,000.00, cheques amounting to a total of $9,000, 1 carton of Fiji Bitter valued at $68.40, 22 bottles of Fiji Gold valued at $193.80, 1 can rum and cola valued at $3.10, 13 cans of Joskes valued at $58.50, 2 bottles of tribe valued at $6.20, 1 can of vodka valued at $4.99, 2 x 750ml Bounty Rum valued at $133.90, 3 x 375ml of Regal Gin valued at $111.00, 2 x 375ml Delux Whisky valued at $74.00, 1 Mosuto wine valued at $14.95, 1 BH 10 valued at $6.90, 3 x BH 20 valued at $37.20, 1 Rothmans 10 valued at $6.70, 2 taki glass valued at $1.00, 7 x Nivea Cream valued at $83.93, 8 Brut Body Spray valued at $63.92, 12 Gillet shave valued at $299.88, 6 x Revlon hair colour valued at $75.54, all to the total value of $101,243.96, the property of SINGHS SUPERMARKET.

2.	The assessors unanimously found the accused guilty on both counts as charged. 

3.	I direct myself in accordance with my own Summing-Up and review evidence led in the trial. Having concurred with the opinion of assessors, I pronounce my judgment as follows.

4.	There is no dispute that the Supermarket owned by the complainant was burgled on the 11 June 2018 and that the items listed in the agreed facts had been stolen.  

5.	The Prosecution called two witnesses, the complainant and the police crime scene examiner D/ CPL Koroi. There is no direct evidence touching either the burglary or the theft. The Prosecution solely relies on the circumstantial evidence, based particularly on the fingerprint found on the roller shutter of the supermarket. In order to gain entry to the supermarket, the burglars had forced open the roller shutter and a steal cabinet had been put in place to prevent the roller shutter from coming down. 

6.	The fingerprint examination was done on the 11th June 2018, soon after the burglary. According to D/CPL Koroi, the fingerprint was developed from the base of the roller shutter, the entry point where the burglars had gained entry to the supermarket. It is admitted that the fingerprint found at the crime scene belongs to the accused. In light of this admission, the Prosecution invited the assessors to draw the inference that it is the accused, and nobody else had committed the burglary and the theft.

7.	Although the accused has no burden to prove his innocence, in the absence of a plausible explanation on the part of the accused, it is open, in the circumstances of this case, for the assessors to draw the only inference that it is the accused and no one else had entered the supermarket to commit the theft.

8.	The accused having denied the charges came up with an innocent explanation as to how his fingerprint would have come into being at the base of the roller shutter. The accused in his evidence does not deny the possibility that he may have left his fingerprint at the base of the roller shutter when he came to the supermarket with Samuela, his wife’s first cousin, on the 9 June 2018 to sell dhania and cabbages to the supermarket. The Defence called Samuela to support the version of the accused.  

9.	The assessors unanimously rejected the explanation advanced by the accused. In the circumstances of this case, it is open for the assessors to come up with such an opinion. 

10.	Although the supermarket is a public place, according to the complainant’s evidence, the back entrance leading to the bulk store where the roller shutter was is a restricted area only accessible to the complainant’s family members, employees and the suppliers. The accused is neither an employee nor a supplier. The roller shutter is remotely operated one and was controlled by the complainant himself. These facts are undisputed. 

11.	The complainant denies having seen the accused at any time before until he was confronted in court. He denies the accused having ever approached him with another person with an offer to sell vegetables to the supermarket on the 9 June 2018.

12.	Although the complainant said that he could not recall if anyone had approached him with an offer to sell vegetables, he was certain that the accused with another person had never approached him on 9 June 2018. According to the evidence of the accused, he (accused) had remained outside and only Samuela had gone in to meet the complainant who is the owner of the supermarket. If that is the case, the complainant could not have an opportunity to see the accused. However, the accused said that the person who was controlling the roller shutter through a remote controller heard his call to ‘wait’ while he was holding onto the roller shutter. Samuela confirmed that the boss or the owner of the supermarket was within sight at that time with the remote controller in his hand and he (the boss), having seen the roller shutter being manually stopped by the accused and having heard the call to wait, stopped the roller shutter from coming down and lifted it. The complaint said that he was in control of the roller shutter all the time and Samuela also heard the security guard say that the boss was about to close down the roller shutter. In light of this evidence, if the version of the defence is true, the complainant should have been somewhere near the roller shutter when the accused manually stopped it and he should have seen this incident and the accused. 

13.	This is no doubt a memorable incident that could have been easily recalled by the complainant given the short time frame between the incident and his testimony. However the Defence Counsel never questioned about such an incident when the complainant took stand. The defence’s argument that the complainant is not consistent in his evidence is not tenable. The assessors had no reason to reject the complainant’s version when he said that the accused with another person never approached him on the 9 June 2018. 

14.	There is no acceptable explanation why the accused wanted to stop the motor operated roller shutter manually, taking a risk of being injured, when the front entrance of the supermarket was still open. The version of the accused is implausible. Samuela, who was called to support the version of the accused is not an independent witness in that he had an interest in the accused’s case not only because he is closely related to the accused but also as a business partner in his farm.  

15.	The Counsel for Defence concedes that D/ CPL Koroi is an honest witness although the procedure he followed in examining the fingerprints was challenged on the basis of the Force Standing Orders and Gates J (as he then was) ’s judgment in Baleasavu v State [2002] FJHC 307; HAA0043.2000 (2 August 2002). That judgment is not relevant to the present case because in the present matter the Defence admits that the fingerprints obtained from the base of the roller shutter belongs to the accused. It was never suggested by the Defence that the fingerprints were obtained from a place other than the base of the roller shutter. There is also no direction in the said judgment to say that the taking of photographs is a must and the appeal in that case had in fact been dismissed despite the failure on the part of the examiner to take photographs. The failure to take photographs of the exact place form where the fingerprints were developed does not affect the credibility of the version of the Prosecution in this case.

16.	The South African authority cited by the Defence Counsel [Mlumkelo Ngaye v State , Western Cape High Court, Cape Town A 567/10 (3 December 2010) ] is also not relevant to the present case because in the present case the roller shutter from where the fingerprint was developed was not a public place accessible to the customers or general public. In light of the admission of the accused as to fingerprints, the only issue before the assessors was whether they could believe the explanation advanced by the accused to account for his fingerprints found on the roller shutter soon after the burglary and theft. He has failed to satisfy the assessors that his explanation is true. Upon the rejection of the explanation of the Defence, the assessors are left only with one reasonable inference namely, that the accused had broken into the supermarket and stolen the property listed in the agreed facts.    

17.	Prosecution proved the case beyond reasonable doubt. I accept the unanimous opinion of the assessors. The accused is convicted on each count accordingly. 

18.	That is the judgment of this court. 

Aruna Aluthge 
Judge

AT SUVA
27 September 2019

Solicitors: 	Office of the Director of Public Prosecution for State
		A.K. Singh Lawyers for Defence