Magistrates Court of Fiji

1. The accused,
   
Dishonestly appropriates property belonging to another,

3. With intenintention of permanently depriving the other of the property.
   

Upon considering the main elements of the offence of theft, I now briefly review the evidences adduced by the prosecution.

First prosecution witness Mr. John Stevens testified that he was with Mrs. Suzie Schuster on the morning of the incident. He further stated that they were sitting at the Bus Stop when a person who came from behind grabbed the handbag and ran away. Furthermore, Mr. Stevens testified that he tried to chase him but failed to catch him, but while he was chasing the person, who grabbed the handbag, saw a brown paper envelop fell down from the back pocket of the jean of that person. He then picked the brown paper envelop and found a seaman's book and a wallet in it. Mr. Stevens specifically stated that he did not see the face of the person who grabbed the handbag but saw him from behind. He described him as a short and stocky person.

Cpl 3436 Cama gave evidence as second prosecution witness who received the report of this incident and arrested the accused later while he was on patrol. It was transpired in his evidence that he arrest the accused based on the photograph in the seaman's book which was found in the fallen envelop from the person who grabbed the handbag.

Mr. Pauliasi Vakaloloma, the principle marine officer gave evidence as third prosecution witnesses and elaborated the process of issuance of seaman's record book. 4th and 5th prosecution witnesses are interviewing officer and charging officer respectively.

Upon careful perusal of the evidence adduced by the prosecution I inferred that this instance case against the accused depends mainly on the circumstantial evidence. There is no direct evidence of a theft by the accused. No one saw that the accused stole the handbag and gave evidence about it. Instead prosecution relies on the circumstantial evidence of the accused person's seaman book which was found in the fallen envelop from the back pocket of the person who stole the handbag.

The burden of proof of the accused person's guilt beyond reasonable doubts lies with prosecution. It was held in Woolmington v DPP (1935) AC 462), that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59). It is noteworthy to mention that the burden of proof of beyond reasonable doubts does not mean that beyond all possible doubts.

Generally a court requires evidence to be led before it believes in the existence of a fact. However there are some exceptions to this establish principle which could be found in the common law jurisdictions. "A one exception is that a presumption arises where from the proof of some fact the existence of another fact may naturally be inferred without proof from the mere probability of its having occurred. The facts thus inferred to have occurred is said to be presumed, is taken for granted until the contrary is proved by the opposite party. (Archbold, 2009, para 10-1, pg 1381). When there are no positive testimonies of eye witnesses or by conclusive documents the courts are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence".

The test of inferring a fact from the proof of some fact was discussed by Lord Normand in Teper v R ( 1952)A.C.480 at 489), where Lord Normand held that " it must always narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there is no other co – existing circumstances which would weaken or destroy the inference".

The law of circumstantial evidence was discussed by Her Ladyship Justice Shameem in her summing up address to the assessors in "State v Vulaca (2008) FJHC 83, HAC120.2007 (22 April 2008), where Justice Shameem held "A case of circumstantial evidence relies on a variety of sources of evidence. One example of how it works is this. One day you find your house broken into. The items stolen are clearly identifiable by you because you have put your initial on your DVD and TV screen. The day after the burglary, your DVD and TV screen with your initials are found inside your neighbour's house. His son is seen to be spending a lot of money at Traps Bar. His fingerprints are found on your kitchen door. On the basis of all this evidence, you are entitled to draw a reasonable inference that your neighbour's son committed the burglary in your house, because there is no other reasonable inference that you can draw from the evidence which is consistent with the son's innocence. However, if for instance you did not initial the stolen items and cannot be sure that these items in your neighbour's house is yours, and if there are no fingerprints found then the evidence of the neighbour's son's spending would not be sufficient for you to draw an inference of his guilt. This is because there are other possible reasonable hypotheses for his sudden wealth.

Therefore, with circumstantial evidence you must look at all the evidence together and ask yourselves whether the only reasonable inference you can draw from the evidence is the guilt of the accused. You must ask yourselves whether there can be any other explanation for the evidence which is also consistent with the accused's innocence. That is the law on circumstantial evidence".

In view of above mentioned principle of "presumption of fact", I now draw my attention to examine whether can I make an inference that the accused, whose seaman's record book was found in the envelop fallen from the pocket of the person who stole the handbag is guilt for the offence of theft.

There is no evidence adduced by the prosecution that any of stolen property found in the possession of the accused. Furthermore, no evidence to establish that the wallet which was also found together with the seaman's record book in the said envelop is belong to the accused. The only evidence the prosecution relies on is that the accused person's seaman's record book was found in the brown envelop fallen from the pocket of the person who stole the handbag. Under these circumstances, I can make inference of other possible hypothesis which is consistence with the accused person's innocence when I analysis the evidence of the prosecution. Hence I am of the view that the guilty of the accused is not the only reasonable inference that I can draw from the circumstantial evidence adduced by the prosecution.

In view of the reasons set out in aforesaid paragraphs, I am of the view, that the prosecution failed to prove beyond reasonable doubt, that the accused stole the handbag containing cash $800 (FJD), cash 200 of Samoa Tala, cash US $ 300, Samsung Mobile i-Phone valued at FJ $1500, Sunglass valued at $10, Hair Clip,, Deodorant & body spray valued at US $ 75, NBS bank book and 3x small keys, the property of Suzie Schuster, whereby failed to prove beyond reasonable doubts the accused is guilty for the offence of theft contrary to section 291 of the Crime Decree No 44 of 2009.

Upon considering foregoing reason, I now determine the accused is not guilty and acquit from the charge for the offence of theft contrary to section 291 of the Crime Decree No 44 of 2009.

28 days to appeal,

On this 27th day of January 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.