IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 330 of 2020

        STATE

            vs.

                         SUNIA RORAQIO

Counsel:			Ms. B. Kantharia with Ms. A. Devi for the State  
				Accused In Person
				
Date of Hearing:		19th and 21st April 2022
Date of Closing Submission:	26th April 2022
Date of Judgment:		29th April 2022

JUDGMENT
Introduction

1.	The Accused have been charged with one count of Aggravated Burglary, contrary to Section 311 (1) (a) of the Crimes Act and two counts of Theft contrary to Section 291 (1) of the Crimes Act. The particulars of the offence are that;

COUNT ONE
Statement of Offence
AGGRAVATED BURGLARY: contrary to Section 313 (1) (a) of the Crimes Act, 2009.

Particulars of Offence
SUNIA RORAQIO with others, on the 31st day of August, 2020 at 248 Princess Road, Tamavua in Central Division, entered into the property of KOI PING LEE as trespassers, with the intention to commit theft therein.

COUNT TWO
Statement of Offence
THEFT: contrary to Section 291 (1) of the Crimes Act, 2009.

Particulars of Offence
SUNIA RORAQIO with others, on the 31st day of August, 2020 at 248 Princess Road, Tamavua in Central Division, in the company of each other, dishonestly appropriated assorted food items, 1 x pair of shoes and $20.00 cash, the property of KOI PING LEE with the intention of permanently depriving KOI PING LEE of his properties.

COUNT THREE
Statement of Offence
THEFT: contrary to Section 291 (1) of the Crimes Act, 2009.

Particulars of Offence
SUNIA RORAQIO with others, on the 31st day of August, 2020 at 248 Princess Road, Tamavua in Central Division, in the company of each other, dishonestly appropriated 1 x Microsoft surface 3 laptop in colour blue and black, approximately $200 AUSD and 1 x iPhone 5S the property of JASON LEE with the intention of permanently depriving JASON LEE of his properties.

2.	The Accused Mr. Sunia Roraquio opted to defend himself in person.  On 19 April 2022, at the commencement of the trial the information was read over and explained to the Accused and upon entering pleas of not guilty the matter proceeded to the hearing.

3.	The Prosecution presented the evidence of five witnesses and tendered two exhibits in evidence. The accused and another witness gave evidence on behalf of the defence. Subsequently, the Accused tendered his submission in writing and the counsel for the Prosecution made oral submissions and subsequently filed a written submission, as permitted by court. Having carefully perused the evidence presented during the hearing and the respective written submissions of the parties, I now proceed to pronounce the judgment as follows. 
Elements of the offence
4.	Aggravated Burglary is committed when a person ;
(i)	in the company of one or more other persons, 
(ii)	enters or remains in a building as a trespasser,
(iii)	with intent to commit theft of a particular item of property in the building.
Theft is committed when a person;
(i)  	dishonestly,
(ii) 	appropriates the property belonging to another,
(iii) 	with the intention of permanently depriving the other of that property.
'Dishonestly' and "the intention of permanently depriving the other of the property" is the states of mind of the accused at the time of committing the offence. 'Appropriation of property' is taking possession or control of the property without the consent of the person to whom it belongs.

5. 	Accordingly, to prove these charges the Prosecution has to establish beyond reasonable doubt that:
(i) 	The accused with others,
(ii) 	Entered into the property of Koi Ping Lee at 248 Princess Road as trespasses to commit theft of assorted food items, 1 pair of shoes and $20.00 cash of Koi Pin Lee and 1 Microsoft surface 3 laptop, aprox. $200 AUSD and iPhone 5S of Jason Lee.

6.	The hearing of this matter commenced on 19th of April 2022 and concluded on 26th of April 2022. The Prosecution led the evidence of 5 witnesses. At the close of the prosecution case the accused made a no case to answer application. Upon hearing the Accused as there was some relevant and admissible evidence the Accused was informed of his rights. The accused opted to give evidence and an alibi witness was called on his behalf. Subsequently the Accused, and prosecution were heard in their closing addresses and the accused submitted the same in writing.

Prosecution Case 
7.	The prosecution led the evidence of complainants PW 1 Koi Ping Lee and PW 2 Jason Lee. They are father and son and reside at 248 Princess Road, Tamavua. Daily around 7 in the morning they go to their business places. Apart from these 2 the wife of the Koi Ping Lee too lived with them and she also joins the complainants when they so set off each morning. This leaves their hose closed during the day. On 31st August 2020 when the three of them returned home around 7.30 p.m., as the gate was unlocked, grill was damaged and the door was opened they have immediately proceeded to the Samabula Police Station and informed the said break-in.

8.	A police officer had accompanied them, inspected the house and confirmed that their house had been broken into. The entire house had been in a mass and food stuffs in the fridge too had been taken out. Immediately they have noticed the Microsoft Surface computer, about 2 to 300 Australian and Fijian Dollars, an IPhone 5S of Jason Lee, a pair shoes, loose change around 20dlrs and also meat chicken wings, pork, fish from the fridge of Koi Ping Lee were missing.

9.	There had been one CCTV camera in operation on the side in which the grill was broken. The two complainants have perused the CCTV recording of that day and observed that between 11.49 a.m. and 12.01 p.m. (mid-day) three Fijian guys with a jack and widening the grill at the back and moving around were seen. 

10.	PW2 Mr. Jason Lee has downloaded the recording to a USB devise and handed it over to the investigating officer at Samabula Police Station.

11.	It is in evidence that PW1 and PW2 have viewed the entire recording of 31st August 2020 from 7.00 am in the morning to 7.30 p.m. in the night and have not observed any other movements of person except what was recorded between 11.45 and 12.07. This CCTV footage had been downloaded to a USB devise on the same day and then handed over to the police. A CD containing the said CCTV footage was marked and produced as PE 1. 

12.	The evidence of these two witnesses remained unchallenged as the accused did not cross-examine except for one question he put to PW1. These two witnesses’ evidence was not challenged and there being no reason to doubt their credibility or the truthfulness. There were clear and consistent and having observed their demeanor I without hesitation accept as truthful witnesses.       

Police Evidence

13.	The Prosecution summoned PW3- WPC 4414 Mafi, PW5- DC 5077 Timoci Nakalevu and PW6- DC 5359 Viliame who were attached to the Samabula Police at that time. PW6 has arrested the accused on the 9th of September 2020 at the accused house around 7.00 in the morning. This witness had known the Accused Sunia Roraqio prior to this day and as such could recognized him on sight. He identified the accused in open court. 

14.	PW3 WPC Mafi stated that she visited the scene on 31st August 2020 and also submitted a report to the senior officer and was directed to investigate this matter. The following day she received the CCTV footage in a USB device which she downloaded to her computer at the police station and had viewed. Then she had 3 copies made on CDs from a nearby computer shop. One of which was marked as PE 1 in this court. 

15.	She has observed three iTaukei boys on the CCTV footage and had recognized the boy in a bucket hat as Sunia Roraqio the Accused. She had in the course of her duties come into contact with this accused on several occasions prior to this and also, she had known him personally as the accused has had a child with her cousin. In view of this long-standing familiarity, she had been able to recognise the accused on the CCTV footage. 

16.	She explained that certain distinctive features of Sunia Roraqio were seen on the CCTV footage. They are that the broad tip of the nose, broad jaws and the lower lip flipping out (she demonstrated by pulling out her lower lip downwards). In addition to these features, she also stated that the accused has a tattoo on his left upper arm with an XXX border around the lower end. As she had filled in the identification details of Sunia on several occasions she had examined him for tattoo marks and has observed the said tattoo. 

17.	Similarly, PW5 DC Nakalevu testified that PE1, CCTV footage was shown to him and he too recognized the man wearing a bucket hat to be the Accused. This witness too had come in to contact with the accused on several occasions prior to this day and had known him. This witness also narrated the distinctive identifying features as stated by WPC Mafi. In addition, he states that the height and built too are similar.
(The reason for the Accused to come into contact with the police witnesses will not be considered against the Accused n an way except to understand how the witnesses to know the Accused.) 

Evaluation of the Police Evidence
18.	The accused suggested to witness Mafi that it is not possible to identify the person wearing the hat as his eyes cannot be seen. Her response was in view of the distinctive features she was able to define. The only challenge he made was that the police witnesses have not stated these distinctive features in their statements and to that extent this is an omission and contradictory thus false. 

19.	Now I will consider the effect of these omissions. The fact that all the police witnesses recognised the Accused upon viewing the CCTV footage is not challenged and nor is there is any omission on the fact of so recognizing. The omission is only on the failure to state the distinctive features in their statements. The witnesses whilst testifying as to the fact of recognizing the Accused on the CCTV footage explained the basis and reasons for their recognition. The police witnesses have made a recognition of a person whom they have known before and this was not a situation where they tried to find a person to fit in to the said unique features. Thus, the failure to mention these specific features does not in my opinion affect the veracity of the evidence or the credibility of the witnesses. This Court can for itself observe if such features are present.

20.	The Accused suggested that the failure to hold an identification parade affects the evidence of recognition. The police witnesses in this case made a recognition of a known person as such identification parade would serve no purpose as it would have been no more than an identification of a person on the parade that the witnesses already knew. There was no allegation made against the police witnesses of any impropriety and their evidence was consistent and the demeanour was forthright and professional. I accept their evidence as being reliable and truthful.

 Defence Evidence
21.	The accused gave evidence and took up an alibi that between the 30th and 31st August, 2020 he was at the house of a family friend named Jonacani Nacagi at Volavola Street, Navosai in Narere helping him to build the porch of his house and left at 9.00 p.m. of the 31st. He had spent the night and had his meals there. He claims to have been at that house continuously during that period. 

22.	In cross examination the Accused was repeatedly asked to describe the porch was or at least to give a rough description of its size/dimensions. The Accused was unable to describe and said that he cannot recall. He was unable to recall the number of rooms of that house as he claims to have stayed in the sitting area. However, he was unable to remember the size or describe the sitting room too. He said there were three persons in the house namely Nacagi, his wife and his daughter but he could not remember and was unable to tell the apparent age of the daughter. He could not remember as to what he ate whilst he was there. He could not remember or tell the colour of the house or whether there were any other houses in the vicinity. When suggested that he had not mentioned the fact of going to Nacagi’s house in the statement the response was that he told but the police did not record it. He also said that apart from himself there were some others to helped with the construction of the porch however he could not recall how many or who they were. It was suggested that he was unable to so answer because did not go to Nacagi’s house and on 31st and he was at Tamavua and that it was he who is seen on the CCTV footage. He denied the same.

23.	When the accused was confronted with the unique identifying features as stated by WPC Mafi including the tattoo on the upper left arm his response was that it was not mentioned in Mafi’s statement and it was inconsistent. When asked if he has such a tattoo, he opted not to answer and said he will remain silent. When he was asked to show his left upper arm then too, he said, “I will remain silent”. His response further was that no identification parade was held. The accused finally stated that he did not know anything about the robbery and he was at his cousin’s house on that day.

Evaluation of the Accused’s Evidence
24.	The alibi of the Accused was that he was at the house of Nacagi during the relevant time. The sole purpose for him to go there was to construct the porch and it was in August, 2020. But just 1½ years after he is unable to recall or remember the nature or the size of the porch that he helped to construct. Neither can he remember or recall the color of the house, and he is unable to describe the sitting room where he spent the night at this house. Is this probable in the normal course of event? I think not. If a person did actually spend 2 days at a cousin’s house and constructed a porch, he will certainly have at least a rough idea of its nature and size or the color of the house. He states that cannot remember the age of his cousin’s daughter who was at that house. Further he cannot remember if there were any other house in the vicinity. To my mind this is improbable and it is almost impossible to not remember any of those things if he had actually been there as claimed. Thus, the only irresistible conclusion is that the Accused had not been to the house of Nacagi during the relevant time or to that matter at any other time either and he is being untruthful when he says that he had been to the house of Nacagi on the 30 and 31 August 2020.

25.	The Accused opted to remain silent and did not answer when asked if he has a tattoo in his left upper arm. An Accused certainly has a right to remain silent under Section 14 (2)(j) of the Constitution. The said right and protection is further complemented by Section 126 (2) & (3) of the CPC which reiterates that an accused or his/her spouse shall not be called as a witness except on the application of the Accused and the failure of the Accused to give evidence shall not be made the subject of any comment by the prosecution. If in the exercise of that right he remained silent no adverse inference could be drawn. However, if an Accused opts to give evidence in the exercise of his right conferred by Section 231 (2) (b) of the CPC then the he by virtue of so opting does ipso facto voluntarily abandon his right to remain silent conferred by Section 14 (2) (j) of the constitution.  

26.	The rights and freedoms recognized and conferred by Chapter 2 of the Bill of Rights is not absolute and unfettered but subject to section 6(5) of the Constitution which provides for limitations. Sub section 5 of section 6 provides that rights could be limited by limitations expressly provided by or under a written Law. This is complemented by Section 7(3) of the constitution which provides that, a Law which so limits a right is not invalid solely because it exceeds the limits imposed by chapter 2 of the Constitution. Correspondingly section 125(6) of the CPC enables incriminating questions to be put to an Accused person if he gives evidence.

27.	Thus, the Accused in this case had no right to remain silent and the prosecution was not prevented from putting an incriminating question to the Accused. The Prosecutor was entitled to ask the accused if he has a tattoo on his left arm. If the Accused did not have a tattoo at all or it was different from the tattoo as seen on the CCTV footage, all he had to do was to show his arm and that by itself would have been sufficient to create a serious doubt and bring home an acquittal. If so, why did he not answer or show his upper arm? The only inference is that he in fact has a tattoo as described by the witnesses and he was of a guilty mind and fared the truth.

28.	Accused was evasive when questioned about the unique features ie., broad nose, wide jaws, lower lip flipping out, height but did not deny having these features and the tattoo on his left hand. In the aforesaid circumstances the evidence of the Accused is improbable to such an extent that the Accused is lying when he says that he was at his cousin’s house on the 30th and 31st. Accordingly, I totally reject the evidence of the Accused as it is false and improbable.

Defence Witness Nacagi
29.	This witness was called to support the accused in his alibi. Whilst stating that the accused did come to his house to build a porch and that he remained there on the 30th and 31st. He states that during this period his daughter was schooling. He also stated that this was mid-week and that was the basis for him to state his daughter at school. However, when confronted in cross-examination that the 30th was a Sunday the witness whilst admitting there is no school on Sundays attempted to change his position.  He was unable to recall certain recent events such as he been remanded on 4 occasions t claims to remembers specifically the event of 30th and the 31st of August 2020 is highly improbable. This considered with his evidence that it was mid-week clearly establishes that he is not narrating and something that actually happened but he is fabricating an event for some purpose.

30.	Considering the totality of the defence evidence I observe a significant contradiction between the Accused and his witness. The accused states that there were several others who helped in constructing the porch but Nacagi firmly and categorically states that no one else other than the accused was there. If these two actually jointly embarked upon the construction as asserted it is impossible for them not to recall and remember if any others participated. Thus this contradiction has arisen not due to faulty memory but due to utterance of deliberate falsehoods.  Accordingly, the defence evidence is unreliable and false and I reject the same in toto. 

CCTV footage 
31.	The prosecution produced the CCTV footage PE1. Complainants testify that this is an extract of an accurate and contemporaneous recoding of the CCTV camera at 248 Princess Road. The date and time are automatically depicted therein and it is a recording between 11.49 a.m.  and 12.01 p.m. of 31st August 2020. CCTV recording is real evidence and provides direct evidence of so much of the incident as depicted therein. The relevancy of CCTV footage evidence was considered in the case of Dodson and Williams ([1984] 79 Cr App R 220), where Watkins LJ held that photographs taken by the security camera during the robbery are admissible in evidence for two purposes. Firstly, it could establish that the offence was committed, and the secondly it could establish as to who committed the crime. It was also held that that the jury can compare the accused in Court with the suspect in the photographs. 

32.	In Attorney General's Reference (No 2 of 2002) ([2003] 1 Cr App R 321), the Court of Appeal of England was called upon to consider the following questions:
i.	When a suspect is filmed committing an offence, is the evidence of identification by recognition from a witness, not present at the scene, but who knows the defendant and who, having seen the film, identifies the suspect as being the defendant, inadmissible, because the film can be played to the jury without calling witness and the jury will have the opportunity to compare the defendant in the dock to the suspect on the film and can decide themselves if they are one and the same person,
ii.	For an identification of such a witness to be admissible, is it a requirement of law that the witness must have special skills, abilities, experience and knowledge which the jury does not have, 
iii.	If so, what should those special skills, abilities, experiences and knowledge be? 

Upon considering the said, questions, the Court considering several other decisions held that there are at least four circumstances in which, a jury (trier of fact) can consider a photographic image from the scene of the crime and conclude if the defendant committed the offence as follows:

i.	Where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (Dodson and Williams).
ii.	Where a witness knows the defendant sufficiently well to recognize him as the offender depicted in the photographic image, he can give evidence of this (Fowden and White, Kajala v Noble, Grimer, Caldwell and Dixon and Blenkinsop); and this may be so even if the photographic image is no longer available for the jury (Taylor v Chief Constable of Chester).
iii.	Where a witness who does not know the defendant spends substantial time viewing and analyzing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare and Peach).
iv.	A suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury (R v Stockwell (1993) 97 Cr App R 260, R v Clarke [1995] 2 Cr App R 425 and R v Hookway [1999] Crim LR 750.

33.	Justice Rajasinghe in State v Naureure [2020] FJHC 1033; HAC331.2018 (20 November 2020) considered the above and opined that,

“In view of these judicial precedents, it appears that the jury would play the role of a witness of the event in analyzing the video footage. However, the jury's task in identifying or comparing the suspect in the photograph or video recording with the accused is different from a witness identifying a suspect at the scene of the crime (Blenkinsop [1995] 1 Cr App R 7). A full "Turnbull directions" is not necessary for this kind of comparison or identification. Still, the jury must exercise special caution in comparing or identifying the accused, such as the quality of the images, changes in the accused's appearance since the time of the offence, etc. (Dodson (supra)). I prefer to adopt these guidelines in analyzing and evaluating the video footage in this case. 

34.	Accordingly, I too would adopt these guidelines in analyzing and evaluating the CCTV footage in this case. 

Evaluating the CCTV footage
35.	To my mind the scope and manner of considering the said CCTV footage PE1 and the still photos PE2 and the relevancy of the police witnesses evidence vis-a-vis the determination of the identity and the recognition of the person on the CCTV footage based on the above principles is as follows. When police witnesses who had known and were familiar with the Accused prior to the incident, views the CCTV footage and testifies or states that, ‘it is the Accused Mr. Sunia Roraqui who is in that footage’, it is a recognition and not an identification. There is a subtle but important difference between “recognition” and “identification”. When the Police witnesses, by virtue of the prior familiarity with or prior knowledge of the Accused, perceives by their sensors that the person before him/her to be Mr. Sunia Roraqui, the respective witness recognises the Accused. In contrast when a witness sees the any person for the first time and perceives by his/her sensors the features of such person sufficient to spot such person if seen again, the witness identifies that person. This is the distinction between “recognition” and “identification”.

36.	Thus, in the present case when the Police witness by virtue of their prior knowledge and long familiarity testifies that it is Mr. Sunia Roraqui who is on the CCTV footage. This fact does not ipso facto prove nor can the judge or jury conclude on that score alone that it is the Accused who is seen on the CCTV footage. It is not lawful for a judge or the jury to merely accept the evidence of recognition even of a credible witness and conclude on that it is the accused who is seen on the CCTV footage. As triers of fact, the jury or the judge is required to consider the proved relevant facts including the distinctive features as deposed to by the witnesses and independently consider and form the opinion or conclude if the figure on the CCTV footage is the Accused or not. The judge or the jury cannot surrender or delegate this function to any witness. It is the sacrosanct function of the Judge or the jury to form that opinion or arrive at the said conclusion on the inferences drawn on proved facts as aforesaid.

Identity of the person in the CCTV footage 
37.	The CCTV footage is real evidence and provides direct evidence of so much of the incident as depicted therein and it could establish that the offence was committed, and also it could establish as to who committed the crime. As the only evidence as to who committed the crime the identity in this case is the CCTV footage I will now consider if the person in the bucket hat on the footage is the Accused and then consider if the footage proves the ingredients of the offence either directly or circumstantially.  

38.	The CCTV footage PE 1, shows three persons and two of them appears very briefly and the third in a light-colored bucket hat is present for a considerable period of time. The prosecution presented their case on the footing that the person in the bucket hat is the Accused Mr. Sunia Roraqui. Witnesses PW3- WPC 4414 Mafi, PW5- DC 5077 Timoci Nakalevu and PW6- DC 5359 Viliame. PW6 testified that they recognize the person in the bucket hat to be Sunia Roraqio the Accused. 

39.	I would now consider if the figure or the person wearing a bucket hat is identifiable with certainty. I myself in the course of the trial viewed this footage at least 4 times. Apart from viewing it on a large screen in the courthouse I also viewed the CD PE1 provided with the disclosures 2 to 3 times and also closely studied and perused the 14 still photo images extracted from the CCTV footage produced as PE 2. Out of these still images except the first 3 all others are of the person wearing the bucket hat. As the person is wearing bucket hat the eyes, the upper part of the nose and the scalp are not visible. But the lower part of the nose and the rest of the face is clearly visible. There is bright sun light and the images are clear and reasonably of good quality. Accordingly, the figure in the CCTV footage subject to wearing a bucket hat can be seen very clearly and the details can be perceived. 

40.	Having made the above observations and the assessment I would now proceed to consider if this court can come to a conclusion as to the identity of the person. If I may put it directly, I would now consider if this court can conclude on the required criminal standard of evidence if the figure in the bucket hat is the Accused. For this end I will make use of the specific identifying features as deposed to by the police witnesses. They are the flat and broad tip of the nose and the rather unusual broad lower lip dropping or flipping down and the height and the color. I observe these features on the figure wearing the bucket hat. I also observe that the jaw is broader than usual, the lower lip flips out and the height is about 6 feet. Thus, the features as narrated by the witnesses are visible, present and identifiable on the CCTV footage. Apart from this the man in the bucket hat is seen walking about in the footage he appears to be around 6 feet in height. Apart from these physical features I also observe that there appears a darkish area on his left upper arm and a very careful scrutiny and observation of the CCTV footage along with the still images shows that there is a tattoo on that person’s left upper arm as described by the witnesses with a XXX boarder. This is visible at pages 12, and 13 of the still photos and the corresponding portion of the footage.

41.	Having so made my observation on the footage and photos I would now embark upon to consider if the figure in the bucket hat is the Accused and no other but the Accused. Whilst the trial was proceeding, I had the opportunity to observe the facial features of the accused for a couple of days. As and when the witnesses narrated the features I consciously observed to ascertain if such features are in fact present and evident on the accused. Accused was certainly a person 6 feet in height. The tip of his nose is broad and the striking feature is that his lower lip was somewhat noticeably large and was curving downwards at the two ends. Whenever he had his mouth slightly open there was a tendency for his lower lip to be prominent and it flips out and downwards. The jaws of the accused are certainly broad. All these features are there in common between the accused in court and on the figure in the bucket hat on the CCTV footage. The position taken up by the accused is that there are lot of people with these features but he did not deny or challenge that he himself have those features. I myself observed that these features on the accused as well as on the figure in a bucket hat on CCTV footage. The height, colour and the general build appear to be similar too.
 
42.	Further thereto the figure on the footage on the CCTV footage has a tattoo on the left upper arm. Witness Mafi who had known the accused on a personal level as well as professionally has seen the Accused having a tattoo on his left upper arm. When the accused was asked if he has such a tattoo and also when requested by the prosecutor during cross examination to show his left upper arm the accused did not answer but said that he would exercise his right to remain silent. I have already considered if he has such a right when he opts to give evidence and I find that the accused does not have such a privilege (see paras 18-20 above). Throughout the trial the accused was dressed in a white shirt of which the sleeves came down to his elbows. As such it was not possible to observe if he in fact has a tattoo as described by witness Mafi. Thus, this court have to consider the evidence of witness Mafi to determine if the accused has a tattoo on his left upper arm. When witness Mafi testified that the accused has a tattoo on his left arm the accused did not challenge the fact of he having a tattoo but only took up the position that the said observation made by Mafi and other police witnesses are not in their respective statements. The witnesses did admit that they have not mentioned this in their statements. As already considered above, this is not a material omission and this court could have observed it if shown by the Accused. In addition, the accused has not either in cross examination nor in his evidence denied the fact of him having a tattoo on his upper left arm as described by the witnesses. The conduct of the accused in not answering the question and not showing his left upper arm leads to the irresistible inference that he has a tattoo as described by the witnesses on his left upper arm and that the reason for him to so conceal is the fear or the apprehension that if it is disclosed it will be adverse to him. How could this be adverse to him? It will be so only if there is a similarity between the tattoos. Tn these circumstances, I reasonably infer and without doubt conclude that the accused does have a tattoo similar to the tattoo seen on the CCTV footage.

43.	Considering all these unique features, and his height in conjunction with the appearance as observed by me, to my mind there is no doubt and I am certain that the figure in the bucket hat on the footage is none other than the Accused and the accused himself.

Proof of charges
44.	Now there is proof beyond reasonable doubt that of the Accused was present with two others in the rear compound of the complainant in 31st August 2020. But this CCTV footage does not show the accused or any other present with him removing or taking any of the items that had gone missing and referred to in counts 2 and 3. CCTV footage shows the area close to the grill that is had been broken into. Thus, the CCTV footage only provides direct evidence of the fact that the accused with two others were present at the scene. Hence the prosecution endeavors to prove other elements inferentially on circumstantial evidence. The footage clearly shows the accused and two others moving about their manner of moving, looking around and communicating clearly indicates that they are engaged in some exercise secretly and does not want to be seen by others. The Accused is seen looking out and watching as to whether anyone is coming. One of the persons has in his position a car jack on the right side of the footage you see a person middling around with the iron grill. The only reasonable inference you can draw from these circumstance is that the accused with two others were acting with a criminal mind and they were in the process of breaking the grill to gain entry into the house. This evidence is complemented by the evidence of the complainants and the police as follows. When the complainant left in the morning, the house had been in its normal condition but when they arrived at 7.30 p.m. the grill was broken and the house ransacked that means someone had entered the house during the day. The complainants perused the CCTV recording of the entire day. The only occasion they have seen the movement of intruders is only during the 16-minute of footage produced as PE 1. Thus the only irresistible inference this court can draw is that it is the accused with two other who had broken into this house and ransacked the same. It is in evidence that sum of $20, assorted food items and pair of shoes of witness number 1 Koi Ping Lee was missing and Microsoft Laptop, $200.00 AUSD and IPhone of witness Jason Lee were missing. The only irresistible inference that this court can draw from the said proved circumstance is that the accused with two others acting jointly together have entered into the property of Koi Ping Lee at 248 Princess Road, Tamavua and has dishonestly appropriated the same items that were missing. There is no other reasonable hypothesis or inference that can be drawn from these proved circumstances. 

Conclusion 
45.	The evidence of the complainants and the CCTV footage proves that between 7 a.m. and 7.30 p.m. of the 30th of August 2020 the Accused with others person have entered into the property of Koi Ping Lee at 248 Princess Road. The iron bars of the grill had had been pushed apart and they have gained entry in to the house. The entire house had been ransacked and assorted food items, 1 pair of shoes and $20.00 cash of Koi Pin Lee and 1 Microsoft surface 3 laptop, aprox. $200 AUSD and iPhone 5S of Jason Lee were missing. The necessary inference is that the Accused with others have taken possession of the said property without the consent of Koi Pin Lee and Jason Lee. The CCTV footage corroborates this evidence and proves that the Accused with 2 persons have come between 11.45am and 12.07 pm mid-day to the premises and used a jack to open the grill and gained access. The manner of moving talking and looking around gives rise to the inference that they were acting dishonestly with the intention to permanently deprive the complainants of the said property. 

46.	I find the Accused's defence of alibi is false and not true. 

47.	Accordingly, I hold that prosecution has proved counts 1, 2 and 3 beyond reasonable doubt.

48.	Accordingly, I find the Accused Sunia Roraqui guilty of counts 1, 2 and 3 for the offences of Aggravated burglary and theft respectively, as charged in the information, and convict him separately for each count. 

………………………………………………….
							Justice K.M.G.H.Kulatunga

At Suva
29 April 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Accused In Person