IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 638 of 2005

STATE

V

AJAY RAJ s/o Jay Kumar

Prosecution: Sgt Wilson
Defence: in Person

JUDGMENT

The accused has been charged for larceny contrary to S.259 & 262 of the Penal Code.

Particulars are him with another on 17th February 2005 stole 44 packets of Giggles Diaper valued $903.44 property of Dolabet Hygine Australasia Limited.

The prosecution called 6 witnesses. The warehouse supervisor at MH Tamavua witnessed the unloading of cartons of Giggles Diapers at their containers. He noticed some boxes were empty being stacked up. It was cello-taped and the contents missing. 4 cartons were found to be empty. The accused and the delivery boy went back and brought filled cartons to replace the empty ones in about 15 -20 minutes. These cartons initially was loaded and invoice given to the driver and delivery boy. Storekeeper gave evidence he has received diapers from Fijian and Indian boys in his shop. It was loose items. He paid $270.00. He identified accused coming to sell on 27/2/05. He also said many Fijian boys also come to his shop to deliver items. 

The accused gave voluntary caution interview in which he stated that on delivery cartons were found empty. They had made a prior delivery to Laucala Beach shop and within 15 minutes they recovered the cartons and delivered it to MH Tamavua.

The accused gave sworn evidence. He said there were short deliveries. The documents were handed to the delivery boys. He said deliveries was done to Chinese shops. All cash was handled by the delivery boys. He was only the driver. He made a similar statement after charge. He admitted receiving $50.00 for cash delivery to the Chinese shop which he handed to the delivery boy. 

I have considered whole of the evidence. The prosecution in this case has charged accused for stealing 44 packets of diapers. The evidence shows 4 empty boxes delivered to MH. Once noticed these boxes were replaced within 15 to 20 minutes from an earlier delivery which was extra cartons unloaded to security. This was given back by the prior delivery guard to the accused and the delivery boy. The evidence also shows cash deliveries were done to the Chinese shop but there is nothing before court to show these were part of stolen diapers. The prosecution witness 4 admitted cash deliveries were done to him at times. This was not denied by the company witness. Besides above, the accused was cautioned and interviewed on diapers stolen which was the property of MH Tamavua. The Manager for Tamavua admitted in evidence once the empty cartons were found at time of delivery. 

The accused and the delivery boy replaced them with filled cartons within 15-20 minutes. Hence, the owner was not permanently deprived of the items. 

If the prosecution is saying they stole the diapers and sold it to the Chinese store. There is no complaint from the company as to how and when these items of the company went missing. The prosecution also has not rebutted that cash deliveries were not done by the delivery boy and driver on behalf of the company.

Furthermore, the company staff (PW3) said she had no knowledge that the empty cartons delivered at MH Tamavua were replaced by the men. 

I am not satisfied beyond reasonable doubt that the accused stole the items as charged. There is reasonable doubt which I hold in favour of the accused.
 
The charge is dismissed and the accused acquitted.

Dated this 7th Day of February 2005.

Ajmal G Khan
RESIDENT MAGISTRATE.