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State v Jale [2015] FJMC 129; Criminal Case 1594.2014 (14 October 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1595/2014

STATE

V

SEVANAIA JALE

PC Shanil kumar appeared for the prosecution.
For the accused Mr.Nainima (LAC counsel) present

JUDGMENT

The Fact

1. The accused was charged with one count of Theft Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

2. The particulars of the alleged offence has provided as follows. That the accused Sevanaia Jale on the 19th day of September 2014 at Nabua in the Central Division dishonestly appropriated (stole) 1 x laptop bag valued at $35.00, cash $225.00, bunch of key valued $42.00, 1 x Samsung Xperia mobile phone valued at $350.00, 1 x Samsung phone valued at $199.00 and assorted cards valued at $20.00 all to the total value of $871.00, the property of Navin Chand Maharaj.

3. At the date of plea the accused plead "not guilty" and matter fixed for hearing on 9&10/02/2015. On the hearing date the accused did appear with his legal aid lawyer all the witness were present.

4. Thereafter the prosecution commenced their case. The complainant was called as prosecution witness.

5. The prosecution called 02 witness and tendered the statement of the charging officer and Caution interweaves notes.

PW1- Navin Chand Maraj – (the complainant) Court Officer; Nabua,
PW-2- PC 3196 Apetereki – Police Officer- Nabua

The Law

6. Section 291 of the Crime Decree interprets theft as "A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property".

7. The elements of the charge of Theft has mentioned by Pryantha Fernando J. in State v Tukai - Summing Up [2015] FJHC 114; HAC253.2013 (20 February 2015) as follows.
"For the accused to be found guilty of theft, the prosecution must prove the following elements beyond reasonable doubt.

1].The accused;

2].Dishonestly;

3].Appropriated;

4].the property belonging to another;

5]. with the intention of permanently depriving the other of that property"

8. His lordship further in State v Tukai - Summing Up [2015] FJHC 114; HAC253.2013 (20 February 2015) explained the elements and has held "Dishonestly means not being honest. Appropriation of property means to take possession or control of the property without the consent of the person to whom it belongs. In law property belonging to a person if that person has possession or control of the property. Once the possession of the property is taken by the accused from the person whom it belongs to, if he uses it or deals with it as the owner without the consent of the said person then he commits theft".

" Intention of permanently depriving a person of property' is also defined in law. If an accused person appropriates property belonging to the complainant without meaning the complainant permanently to lose the thing and if the accused person's intention is to treat the property as his own to dispose of regardless of the complainants rights, then the accused has the intention of permanently depriving the complainant of it."

The Evidence

9. PW1- Navin Chand Maraj – (the complainant) he stated that he can recalled 19/9/2012 at Nabua he was going to CTD Nasese for training trough a passage leads to Ratu Mara Road. One Alifereti snatched his laptop bag from his back and started running. He said this bag containing money, 3 mobile phones, and wallet. The accused too started running before the one who had bag. The witness chased the culprits. But he couldn't catch them as they were speeder than him. Then the accused was given the bag and they vanished. (The witness identified the accused at open court). Later he managed to arrest the accused with the help of taxi driver. There was no recovery of items.

10. At the cross examination PW-1 confirm that he did recognised the accused by his cloths and not by features. The accused was wearing red mixed yellow t shirt and ¾ pant. He said the bag was passed to accused and he too ran away. The witness said he was shocked and frustrated for what happened to him. He identified the accused.

11. PW2- PC 3196 Apetereki – Police Officer- Nabua stated he is acting detective of police. He said he interweaved the accused in English and gave accuses rights. Witness said the only evidence he had was the statement of the PW-1. He admitted the fact that accused did not mention passing the bag to him or that was not put to accuse at interweave.

12. The prosecution marked record of interview of the accused as exp-1 and statement forme charging as exp-2 and statement of victim as exp-3 preyed to consider as part and partial of their evidence.
13. Then the prosecution closed their case. The accused counsel made application under section 178 of CPD to rule that there is no case to answer. But since the bench was satisfied with the fact that there is evidence on the elements of the offence court ruled there is a case to answer.
14. Then the defence open their case. The accused gave evidence.
Dw-1 – Sevanaia Jale- admitted that he was at the said place with one Alfereti on the date of this incident and they were asking for money for their bus fear. He added that since he noticed Alfereti snatched the bag of the complainant and shouted at him to run he started running. Witness said " I run because it was the first time for me to to happen such thing. I just want to run away for form whatever has just happen". There was no pre plan to steal. The accused was asked how he felt when he notices the stealing he replies "I was shocked sir when the thing happens". After the incident witness did not meet Alfereti. He said " I was walking down sir to go and look for transport back". But in contrary to what he said earlier he said "what we did was not right sir, the way we snatched the bag".
Determination
15. The main issue to be addressed by this court is whether the accused positively take part in the theft or not? As per evidence the accused has been in the place of this alleged crime. But as per interweave notes the accused has said then same. That he did not take part in snatching the bag. Even the pw-1 s evidence confirms this fact. As per the victim what the accused has done is catching the bag when it was thrown to him. When considering the elements of theft it is evident that the accused has not taken part in stealing. The offence of has committed by one Alfereti When the bag was receiving by accused (as alleged).
16. Therefore this court acts under section 162 of the CPD reads with alternative charge of receiving as per section 307 of the Crimes Decree No. 44 of 2009. Now the issue is whether accused received the stolen item or not?
" Alternative verdicts
307. — (1) If, in a prosecution for an offence of theft or an offence against section 317, the court is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of the offence of receiving, the court may find the defendant not guilty of the offence of theft or the section 317 offence but guilty of the offence of receiving.
(2) If, in a prosecution for an offence of receiving, the court is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of the offence of theft or an offence against section 317, the court may find the defendant not guilty of the offence of receiving but guilty of the offence of theft or the offence under section 317".
CPD Sec "162. — (1) Where a person is charged with an offence but the court is satisfied that the evidence adduced in the trial supports a conviction only for a lesser or alternative offence, the court may record a conviction made after due process for — (i) any other applicable property related offence where the charge has been burglary or any other property related offence, including - (i) the alternative offence of receiving where the charge has been for theft;................."
(2) The court may record convictions for certain offences in accordance with sub-section (1) notwithstanding that no charge has been laid for the lesser or alternative offence in accordance with the provisions of this Decree."
17. As per the evidence of PW-1 the accused received the stolen bag. In contrary he said "when I passed him (the one Alfereti) he went behind me and then he snatched my bag and then he ran away and vanished". He said "...I got sevania jale because he was sitting there fixing his shoes". As per accused he knew the bag was stolen by one alfereti. Therefore if the accused has received it fulfil the mental of receiving. But it is noted at the caution interweave this allegation has not specifically put to accused. Therefore now it is solely depend on the evidence produced in the court. The accused said "what we did was not right sir, the way we snatched the bag" and this is amount to admission.
18. Therefore this court accept the victims version and based on accuses admission this court convicts the accused for receiving under section 307 of crimes decree.

19. 28 days to appeal.

On 14th Oct 2015 at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate