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State v Vakatalai [2012] FJMC 227; Criminal Case 711.2010 (21 September 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CRIMINAL CASE HAC N0: 711 OF 2010

BETWEEN:

THE STATE
PROSECUTION

AND:

TEVITA VAKATALAI
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Srg Feroz for the Prosecution, Accused in person,
Date of the Judgment: 21st day of September 2012.

JUDGMENT

1. The accused is charged with one counts of "House breaking entering and larceny" contrary to section 300 (a) of the Penal Code Act 17. The particulars of the offence are

Statement of offence (a)

Tevita Vakatalai, on the 14th day of June 2009, at Suva in the Central Division, broke and entered the dwelling house of Shanta Ben Parekh and stole therein $200 cash, 1x gold bracelet valued at $300, 3x Gold Earrlings valued at $1500, 2x Pendent valued at $100 to the total value of $750, the property of Shanta Ben Parekh".

2. Accused pleaded not guilty for this offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called 3 Prosecution witnesses and the Accused gave evidence on oaths but did not call any other witnesses for the defence. At the Conclusion of the hearing I invited the prosecution and the defence to file their closing submission in writing which they filed accordingly.
   
3. In view of the general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accused is borne by the prosecution. There is no onus on thesed used at any stage to prove his innocence or to prove anything else.
   
4. Section 300 (a) of the Penal Code Act stipulates that " Any person who-

(a) breaks and enters any dwelling-house, or any building within the curtilage thereof and occupied therewith, or any school-house, shop, warehouse, counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to Her Majesty, or to any Government department, or to any municipal or other public authority, and commits any felony therein; or
is guilty of a felony, and is liable to imprisonment for fourteen years.

5. In view of the section 300 (a) of the Penal code Act 17, the prosecution has to prove beyond reasonable doubts that the accused,
   
   1. Broke and entered into the house of the complainant,
   2. Commits a felony namely larceny therein,
      
6. Section 297 of the Penal Code Act No 17 provides a definition of breaking and entering as
   

" A person who breaks any, wht, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting, or any other means whatsoever, any door, window, shutter, cellar-flap, or other thing inteto close or cover an openinpening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.

A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.

A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building"

7. Upon considering the main elements of the offence of House breaking entering and larceny, I now briefly summaries the evidence of this case in line with the evidence adduced by the prosecution and the defense.
   
8. The first prosecution witness is Mr. Raj Deo. In line with his evidence, he was watching TV at his house when a lady from his neighbor house came and informed him that she saw someone jumped from the wooden apartment of Mrs. Shanta Ben. However the prosecution failed to call the evidence of the said lady who related the information. Wherefore I have to disregard that portion of evidence as hearsay. With that alert, Mr. Deo went to look for the wooden apartment and found that the window was forced open from the inside. He then proceeded to look for the suspect in his vehicle and found the accused was standing at the junction of the McGregor road with a bag in his hand. He followed the accused when he got into a bus to proceeds to Suva and informed the Police through emergency call and sought their assistance to arrest the accused whom Mr. Deo suspects as the possible perpetrator of that allege breaking at his neighbor's apartment. Police was able to arrest the accused at the Suva Bus Stand after the bus in which the accused was travelling reached there. Mr. Deo stated that he pointed out the accused to the police at the bus stand and then proceeded to police station with them. He confirmed that he saw Mrs. Shanta Ben accompanied by her son came to the police to identify the accused and the items found with him.
   
9. Second Prosecution witness is WPC Vika who searched the bag of the accused upon he was escorted into the police station. She stated in his evidence that she found some ladies jewelries inside the blue ladies bag that the accused was carrying. WPC Vika stated that she was present when the owner of these items a one old Gujarati woman came to the police station and identified them as hers. She could not recall the name of the old Gujarati lady but positively recalled that lady positively identified the items found in the bag and the bag itself.
   
10. The third prosecution witness is Cpl James who searched the accused and found $200 (10x $20 notes) hid under the accused person's groin. Cpl James stated that he searched the accused at the police cell block upon the instruction of his superior officer.
    
11. The accused vehemently denied the allegation and stated in his evidence on oaths that he found the blue ladies bag in a flower garden when he was standing around the junction of McGregor road. He further stated that while he was standing there, a person ran across and threw the bag into the flower garden. He then picked the bag and did not check what inside it. The accused stated that he came to know about the bag as a stolen one when he was arrested by the police and escorted to the police station. The accused further said that he was a fisherman and the money found in his groin was from his employer.
    
12. At the conclusion of the prosecution and the defence case, the learned prosecutor and the accused tendered their respective written submissions. The learned prosecutor stated in his submission that the prosecution has successfully proved all the elements of this offence and invited the court to consider the evidence presented by the prosecution and find the accused guilty for both counts.
    
13. The accused contended in his submission that the prosecution has failed to prove their case beyond reasonable doubt and court cannot safely return a verdict of guilt.
    
14. Bearing in mind the evidence presented by the prosecution and the defence and their respective written submissions, and the main elements of the offence of "House breaking entering and larceny", I now proceed to analyses the evidence presented before me by the prosecution and the defence.
    
15. Upon careful perusal of the evidence adduced by the prosecution and the defence and their respective written submissions, I find that the accused admits that he was found in procession of the stolen blue color ladies bag and jewelries therein. He contended that he picked it from a flower garden beside the road when it was thrown by an unknown person who ran away while he was standing beside the road. He claimed that he did not know that bag was a stolen one and had no knowledge of the existence of the stolen items inside.
    
16. Apart from the arrest of the accused person with the stolen items there is no other evidence of any eye witness who saw this crime took place. The lady who relates the information to Mr. Deo is not called by the prosecution so did Mrs. Shana Ben as she is very old and is not in a condition to give evidence.
    
17. Under this circumstances, I now turn my attention to the issue that whether the accused was in actual possession of the stolen bag and items therein at the time of his arrest. At this point I endeavourer to find out the legal definition of "possession" in one of the most celebrated cases on the issue of "possession of illicit drugs" Warner v Metropolitan Police Commissioner ( 1969) 2 AC 256) which I consider will assist me to properly determine whether the accused person was in procession of the stole bag and items therein. Lord Guest in Warner v Metropolitan Police Commissioner (supra) defined the possession by citing the Dictionary of English Law ( Earl Jowit) (1959) stated that " Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control, secondly physical control is not possession, unless accompanied by intention, hence, if a thing is put into the hand of a sleeping person, he had not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed".
    
18. Bearing in mind the aforementioned legal precedents, I am satisfied that the accused was in possession of the bag and the items therein soon after this crime took place. Even though Mrs. Shanta Ben was not called to give evidence to identify the stolen items from her procession and the recoveries were not tendered as prosecution exhibits during the hearing, I am satisfied with the evidence of WPC Vika and Cpl James as they recovered the bag, jewelries and money from the accused and were present at the time when Mrs. Ben arrived to the police station and positively identify the stolen items that the accused was in procession of the stolen items from Mrs. Shanta Ben. The accused did not dispute the presence of those items and money in his procession. Moreover Mr. Deo confirmed in his evidence that he saw Mrs. Ben accompanied by her son came to the police station after the accused was escorted to the police station.
    
19. In view of these reasons set out above, the prosecution has established in their evidence that the accused was found in procession with the stolen items from the house of Mrs. Shantha Ben at the close proximity to the scene of the crime soon after this allege crime took place.
    
20. 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".
    
21. 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".
    
22. By virtue of the legal principles set out above, Mr. Deo confirmed in his evidence that he saw the window of the apartment of Mrs. Shanta Ben was forced open and found the accused when he was standing at the junction of McGregor Street with a bag in his hand just after this allege breaking took place. Moreover the other two prosecution witnesses established that they found the stolen items and money in Accused when they searched him at the police station. Hence, a positive inference of the accused person's guilty to this offence could be formed with the prosecution's evidence before the court.
    
23. It is an established principle in common law that the inferred presumption of facts could be taken for granted until the contrary is proven by opposite party. It is noteworthy to examine what kind of explanation should the accused offers to rebut the presumption against him. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".
    
24. The accused in his evidence stated that he picked the bag from the flower garden beside the road when it was thrown by an unknown person who ran passed the place while he was standing beside the road. Surprisingly accused picked the bag from there when he clearly saw a man threw it to the flower garden and proceeded to the town. I do not find the explanation gave by the accused has any reasonable weight to rebut the inference of his guilty to this crime. Accordingly, I disregard the accused person's evidence.
    
25. In view of the aforesaid findings, I hold that the prosecution has successfully proved beyond reasonable doubt that the accused is guilty for this offence of "House breaking entering and larceny".
26. In conclusion, I hold that the accused is found guilty for the offence of "House Breaking Entering, and larceny" contrary to section 300 (a) of the Penal Code Act No 17 and convicted for the same.
    

On this 21st day of September 2012.

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