IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CRIMINAL CASE N0: 986 of 2009

BETWEEN:

THE STATE
PROSECUTION

AND:

USAIA NAWAIDRANU BOLA
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe, 
COUNSEL: Srg Feroz for the Prosecution,
Accused in person,
Date of the Judgment: 22nd day of February 2013.

JUDGMENT

1.	The accused is charged with one counts of "Burglary" contrary to section 299 (a) of the Penal Code Act 17 and one count of "larceny in Dwelling House of Property to a value amounting to not less than $10" contrary to section 270 (a) of the Penal Code Act 17. 

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 chose to give a dock statement and did not give evidence on oaths or did not call any other witnesses for the defence. At the Conclusion of the hearing both the prosecution and the accused person stated that they rely on the evidence presented before the court and do not wish the make any closing submissions. 

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 the accused at any stage to prove his innocence or to prove anything else. 

4.	Section 299 (a) of the Penal Code Act stipulates that "Any person who in the night-

(a)	breaks and enters the dwelling-house of another with intent to commit any, felony therein; or

is guilty of the felony called burglary, and is liable to imprisonment for life, *with or without corporal punishment.

5.	In view of the section 299 (a) of the Penal code Act 17, the main elements of the offence of Burglary which the prosecution is required to prove beyond reasonable doubts are that;
 
i.	The accused,
ii.	In night, 
iii.	Broke and entered into the house of the complainant, 
iv.	With intent to commit any felony therein,

6.	Section 297 of the Penal Code Act No 17 provides a definition of breaking and entering as 

" A person who breaks any part, 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 intended to close or cover an opening 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.	Section 270 (a) of the Penal Code Act 17 states that; 

"Any person who steals in any dwelling-house any 1 chattel, money 1 or valuable security-

(a) if the value of the property stolen amounts to not less than ten dollars; 

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

8.	Section 259 of the Penal Code has provided the definition of stealing as that; 

"A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof"

9.	In view of the section 259 and 270 (a) of the Penal Code Act, I find the main elements of the offence of " larceny in dwelling house of property to a value amounting to not less than $10" are that 
 
i.	The accused, 
ii.	Without the consent of the complainant, 
iii.	Without a claim of right made in good faith, 
iv.	Took the property value not less than $10, 
v.	From the dwelling house of the complainant, 
vi.	With the intention of permanently to deprive the complainant thereof.

10.	Upon considering the main elements of these two counts, I now briefly summaries the evidence of this case in line with the evidence adduced by the prosecution and the dock statement made by the defense. 

11.	The first prosecution witness is Ms. Mererai Lotu Kaikai. She stated in her evidence that she found out that her hand bag with two mobiles of her sisters were missing when she woke up in the morning on the day of this incident took place. She stated that some cash together with her personal belongings were inside the missing handbag. She positively identified one Nokia mobile as one of the mobile phones which were gone missing from her home. 

12.	The second prosecution witness is Cpl Paula Kaikai who is the husband of the first witness. He states in his evidence that he was informed the said breaking of his house by his sister- in law. He then found the handbag of his wife with some of her personal belongings which were left on the ground which was about 20 meters away from the house while he and other occupants of the house were looking for missing items. He then called the Nokia mobile phone that is one of the two mobiles which were missing in that morning from his wife's mobile phone. The person who answered his call started to swear at him but he managed to recognize the voice of the person. He then went out and search some drinking spots around the vicinity. When he went to one drinking place at Tivi Tivi lane, he found the accused whom he knew over more than one year tried to drop something once the accused saw him. He went and searched what he drop and found that is the Nokia mobile phone which belongs to one of his sisters- in-law. The accused ran away but he clearly identified him as he was known to him and later arrested him with the support of police. The mobile phone was marked and tendered as prosecution exhibit one. 

13.	The third prosecution witness is Detective Cpl Vularawa Naitini who is the interviewing officer of the accused person. He stated in his evidence that he gave all the rights of the accused prior to record his statement in his caution interview and followed all required formalities. The accused did not challenge the admissibility of the caution interview and it was tendered and marked as prosecution exhibit 2. 

14.	I now turn to the caution interview of the accused person where the accused has admitted the committing of this offence. He has admitted that he entered into the house and stole those items. 

15.	The accused in his dock statement denies the allegation leveled against him and states that he found the phone and used it. 

16.	Bearing in mind the evidence presented by the prosecution and the defence I find the prosecution case mainly depends on the accused person's caution interview and the evidence that the accused was found in possession with one of the stolen mobile phones few hours after this alleged incident took place. Apart from that there is no evidence to prove that the accused actually break and entered into the house and steal therein. The second prosecution witness correctly identified the accused and the mobile phone he dropped down in his evidence. The accused also in his dock statement admits that he answered the call of the PW2 and dropped the mobile when he approached him. 

17.	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". 

18.	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". 

19.	By virtue of the legal principles set out above, the second prosecution witness confirmed that he found the accused in possession of the Nokia Mobile phone which was stolen from his home just hours after this alleged incident took place. Circumstances such allow me to form a positive inference of accused person guilt if he failed to provide a reasonable explanation. 

20.	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". 

21.	The accused in his dock statement admits that he was in possession of the stolen mobile phone but denies that he had committed this offence. He claims that he found the mobile on his way to buy cigarettes. At this point, I must draw my attention to ensure that there are no other coexisting circumstances which could weaken my inference made on the evidence presented by the prosecution. 

22.	The caution interview of the accused which was tendered as a part of the prosecution case, states that the accused has revealed the places where he hid the stolen items and police has done a process of reconstruction. However none of those items were produce during the hearing for the purpose of identification. The prosecution did not provide any satisfactory explanation in this regard in their presentation of evidence. Circumstances such allow me to form contradictory inference apart from the inference of the guilty of accused person. Both PW1 and PW2 confirmed that they found some of the items belong to PW1 with her handbag on the ground some 20 meters away from their house. No other stolen items were presented as evidence though the accused has revealed the whereabouts of the stolen items in his caution interview. In view of these findings, I hold that the prosecution failed to establish the truthfulness of the accused person's confession or self incriminating admission in his caution interview. It is the onus of the prosecution to establish the truthfulness of the confessionary statement of the accused made in his caution interview. Lord Edmund held in Wong Kam-ming v the Queen ( 1980) Ac 247, that " if the Defendant denies the truth of the confession or some self incriminating admission contain in it, the question whether his denial is itself true or false cannot be ascertained until after the voir dire is over and the defendant's guilt or innocence has been determined by the jury".

23.	In view of these facts, it could be reasonably possible that the accused may found the mobile phone when he went to buy Cigarettes as the prosecution failed to establish the truthfulness of the caution interview of the accused. Accordingly, I find that a contradictory inference could also be formed from the evidence presented by the prosecution instead of an inference of accused person's guilt. 

24.	In conclusion, I hold that the prosecution has failed to establish that the accused person is guilty for these two counts beyond reasonable doubts. Accordingly, I found the accused person is not guilty for these two counts of "Burglary" and larceny in dwelling house of property to a value amounting to not less than $10" and acquit accordingly. 

25.	28 days to appeal, 

On this 22nd day of February 2013.

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