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State v Silibaravi [2010] FJMC 53; Criminal Case 869 of 2008 (21 May 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 869/08

BETWEEN

THE STATE

AND

1. INIA SILIBARAVI
2. VACISEVA MARAMA
   

JUDGEMENT

1. The first and the second accused are charged with one count of Office breaking, entering and larceny.
   
2. The statement of offence and the particulars of offence reads as follows;
   

The statement offence

Office breaking, entering and larceny: contrary to Section 300 of the Penal Code.

Particulars of offence

Inia Silibaravi and Vaciseva Marama with another between the 11th day of January and the 12th day of January 2007 at Lautoka in the western division broke and entered into the office of Alert marketing Limited and stole there in $12,034 cash, a Acer brand laptop valued $3,999.00, a Sagem brand camera mobile phone valued $ 267 and a alcatel brand mobile phone valued $ 90 to the total value of $ 16,390 the property of Alert Marketing Limited.

BACKGROUND

3. The offence is alleged to have been committed on the 12th January 2007. The accused were charged on the 2nd December 2008. The case was taken up for hearing on the 11th February 2010.
   
4. Both accused were unrepresented during the trial and the prosecution was conducted by a Corporal. The prosecution called three police witnesses and an employee of the Alert Marketing Limited.
   
5. After the close of the prosecution case it was held that the prosecution has made out sufficiently a case for the accused to reply. Both accused only made dock statements and did not call any witnesses.
   
6. The first accused had been working as the security guard of Alert Marketing Limited while the second accused had been working as a casual worker. They are living in a de facto relationship.
   
7. The main part of the offence is committed by a third person and these two accused have only played a minimal role in the commission of the offence.
   

THE LAW

8. Section 300 of the penal Code reads as follows;
   

Any person who-

(a) breaks and enters any dwelling-house, or any building within the cartilage thereof and occupied therewith, or any school-house, shop, warehouse, counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to [the State], or to any Government department, or to any municipal or other public authority, and commits any felony there in; or

(b) breaks out of the same, having committed any felony therein,

is guilty of a felony, and is liable to imprisonment for fourteen years.

9. Section 21 of the Penal Code reads as follows;
   

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offences;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counseling or procuring its commission.

10. Accordingly it appears that those who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence can also be charged for committing the offence. According to the facts of this case the prosecution has to prove that
    
    1. a person has broke and entered in to the office
       
    2. Stole property from the office
       
    100. The two accused have done or have omitted to do something for the purpose of enabling or aiding another person to commit he offence
         

ANALYSIS

11. The prosecution did not produce any eye witnesses in this case. The prosecution case was solely based on the confessions of the accused and the evidence of the employee of the Alert Marketing Limited. The accused have not challenged the confessions made to the police before the trial was commenced or during the trial when the witnesses who recorded the statement gave evidence.
    
12. Since the caution interviews of the accused persons were not disputed or challenged at any time I decide to accept them as voluntarily made and as evidence against the accused persons.
    
13. According to the evidence given by the prosecution witness Malika Priyashani, she had been working as the administration manger at the alert Marketing Limited. On the 11th January 2007 after work, she said she closed the ware house at about 6.30 pm and left the office. She said that on the 12th January 2001 she received a message from one Nissar about a breaking of the office. She had made a complaint to the police and had noticed when she came to the office that the front door had been broken and cash and cheques worth of 12,000 dollars, two mobile phones, and a laptop all to the value of 16,390 dollars had been stolen.
    
14. The witness said that the security guard who was on duty during the night had not been there and she had summoned him. The witness identified the 1st accused as the security guard who was on duty in that night. She said the 1st accused was recruited as a security guard three months before the incident. Further she said that the 1st accused told her that one Apete was there at 3.30 in the morning. She also said that the 1st accused did not say anything further as he was afraid.
    
15. The 1st and the 2nd accused were explained their right to cross examine the witness but neither of them asked a single question from the witness.
    
16. The prosecution called one S.P. Manasa Talala, a police officer who arrested the 1st accused. The witness identified the 1st accused as the person whom he arrested. The 1st accused cross examined the witness and asked whether any thing was recovered during the arrest and whether the witness was at the scene of crime. The witness answered to both questions in negative.
    
17. Prosecution witness Mereani Moimoi, a woman sergeant said in evidence that she caution interviewed the second accused. The caution interview was tendered in evidence as Police Exhibit 1. The second accused asked only the following question from this witness who recorded her statement.
    

Q: Did I tell you I used the 200 dollars?

A: yes

18. As it was earlier mentioned, the 2nd accused did not challenge her caution interview. In the caution interview she has said that on the 11th January 2007 she was with the 1st accused at the Alert Marketing and around 2.30 in the morning one Apete had gone inside the office. That person has given some money to the 1st accused and the 1st accused has given 200 dollars to the 2nd accused. She has said in her statement that she used all the money to drink beer.
    
19. The prosecution witness Inoke Colati, a police constable said that he caution interviewed the 1st accused on the 13th January 2007. An English translation of the statement was tendered as police exhibit 3. The accused one only asked the following question form the witness;
    

Q: I received only 200 dollars?

A: I don't know

20. The 1st accused too did not challenge the caution interview. The 1st accused has said that on the 12th January 2007 early in the morning around 3 am one Apete has come to his work place while he was on duty as the watchman. The 1st accused had been watching the other person breaking in to the office. The 1st accused has further said that later the other person gave him a bundle of money. The 1st accused had given some money out of that to the 2nd accused who was watching it with him. The 1st accused has said in the statement that he opened the gate for the person who broke in to the office to leave. The 1st accused had not told any one regarding the incident when he left the premises at 7 am.
    
21. It appears from the evidence produced by the prosecution that the first and the second accused have not actively participated in the breaking in to the office of Alert Marketing. A third person by the name of Apete had broken in to the office and has stolen the property according to the evidence. However it appears that the 1st and the 2nd accused have not done any thing to stop this offence being committed by the third person.
    
22. Apparently the first accused had been the person who was supposed to guard the premises. There is no doubt that it is his duty to protect the office from this type of invasions. Firstly the 1st accused has failed to do his duty.
    
23. Secondly he has facilitated the third person to commit this offence and to flee the scene. The 1st accused has admitted that he opened the gate for that person to leave the premises. The 1st accused had been given a part of the stolen money and he has used it for his purposes knowing it to be stolen property.
    
24. Thirdly the first accused has breached his duty by not reporting this incident to any one.
    
25. The second accused who is also a casual worker in the same company appears to be in a de facto relationship with the first accused. She too has used the stolen money and had not done anything to stop this offence. Further she too has not reported this incident to anyone.
    
26. When the prosecution closed the case the 1st and the 2nd accused made dock statements. The 1st accused said "It has been a long time now. I don't have a job. I am looking after our pigs. Looking after my children. I have one boy and one girl." Apart from that the 1st accused did not even deny the allegations.
    
27. The 2nd accused said in her dock statement that she seeks courts forgiveness. She too did not say anything apart from that.
    
28. It is true that the burden is on the prosecution to prove the case. The accused need not say that even he or she is innocent. But this case is solely based on the confessions of the accused. When the confession is not challenged by the defence, nothing much is left for the prosecution to prove the case.
    
29. According to Section 21(1) (b) of the Penal Code every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it.
    
30. The prosecution produced evidence to prove that the first and the second accused's conduct falls within the scope of Section 21(1)(b). Not only the accused have omitted to do certain acts but they have done acts to enable the commission of the offence.
    
31. Therefore I am satisfied that the prosecution has discharged its burden in proving that the first and the second accused are culpable in committing this offence. Accordingly I decide that the prosecution has proved beyond reasonable doubt that the first and the second accused have committed this offence.
    
32. Thus I find the 1st and the 2nd accused guilty of the offence and convict the 1st and the 2nd accused for office breaking, entering and larceny contrary to Section 300 of the Penal Code.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
21.05.2010.