IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 236/2021

BETWEEN:	STATE

PROSECUTION

AND:		KUNAL RAM

ACCUSED

Counsel:		WCPL 4897 Venu Singh for Police Prosecution
			Accused not present and unrepresented.

Date of Trial:		20, 24 – 25, 30-31October 2024
Date of Judgment:	8 July 2024

JUDGMENT
[TRIAL IN ABSENTIA]
Introduction

1.	Mr. Kunal Ram (“the Accused”) was charged with 1 count of Theft contrary to section 291(1) of the Crimes Act No. 44 of 2009 and 1 count of Breach of Bail Condition contrary to section 25(1)(b) and 26(1) of the Bail Act No. 26 of 2002 and Bail Amendment Act No. 28 of 2012.  The particulars of the offences are:

Count 1
Statement of Offence

Theft: Contrary to Section 291(1) of the Crimes Act No. 44 of 2009.

Particulars of Offence

Kunal Ram between 4th day of May 2021 to 5th day of 2021 at Vunisamoloa, Ba, in the Western Division dishonestly appropriated 1 x Land Ranger Mountain Bicycle valued at $700.00 the property of Ajay Vikash Chand with intent to permanently deprive the said Ajay Vikash Chand of his property.  

Count 2
Statement of Offence

Breach of Bail Condition: Contrary to Section 25(1)(b) and 26(1) of the Bail Act No. 26 of 2022 and Bail Amendment Act No. 28 of 2012.

Particulars of Offence

Kunal Ram between 4th day of May 2021 to 5th day of 2021 at Vunisamoloa, Ba, in the Western Division whilst being released on bail by Ba Magistrate Court vide Juv CF: 04/18 with the condition not to re-offend, breached the said bail condition by re-offending.  

2.	The Accused was produced for this matter on 12 May 2021 and subsequently bailed on the same date. Thereafter, the Accused failed to appear on his next Court date of 2 July 2021 and all other dates that followed. The Accused, was apprehended and presented in Court on 19 July 2022 and on the said date, he entered a Not Guilty plea to both Counts. He was subsequently remanded and on 11 August 2022 released on new bail conditions. The matter was then adjourned to 4 November 2022 to fix a Trial date.

3.	On 4 November 2022, the matter was called and the Accused was not present as such a Bench Warrant was issued and a Summons was issued to his surety. The matter was then called on 9 February 2023 and the Accused was present. This Court’s first predecessor adjourned the matter for Trial on 20 October 2023 and the trial in absentia warning was given to the Accused.

4.	On 20 October 2023, the day for Trial, the Accused failed to appear as such this Court’s second predecessor conducted the Trial in absentia.

5.	Upon commencing these proceedings on 3 April 2024, this Court was unable to put the right under section 139(2) of the Criminal Procedure Act 2009 to the Accused given his non-appearance in the matter. This right would allow the Accused to demand that the witnesses or any of them in this matter be re-summoned and re-heard. As this right could not be given to the Accused, this Court in turn, considered section 139(1) of the Criminal Procedure Act, and decided to act on the evidence recorded by its predecessor.

6.	It is important to note that the Accused’s absence from this Trial has not been taken negatively. It is the Court’s overriding duty to ensure that a hearing conducted in the absence of the Accused is conducted as fair as circumstances permit to lead to a just conclusion and the Court should not deviate from the applicable procedures and principles of conducting a fair and just hearing in the absence of an accused (vide Kumar v State; Criminal Case: HAA 34 of 2015 (15 December 2015).

Burden of Proof

7.	It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.

8.	It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.

Summary of Evidence

9.	Prosecution called a total of 7 witnesses to prove its case. The first witness was the Complainant, Ajay Vikash Chand. He recalled that on 5 May 2021, he gave a statement to the Police and that his statement was recorded by the Police officer namely Vipin. He had signed the statement. He further stated that he had given 2 statements which when shown to him, he confirmed were his by showing the Court, his signature and he even read out the statement declaration. Prosecution tendered the statements of the Complainant as ‘PEX1A’ being statement dated 5 May 2021 and ‘PEX1B’ being statement dated 10 May 2021. 

10.	The Complainant stated that the bicycle had been recovered and he recognized that it was his bicycle and upon being shown the bicycle, the Complainant stated that it belonged to him. The Complainant stated that his bike was a black and green mountain bike but that the person who stole it had painted it to the colour it was now – gold. The Complainant stated that the gear was red and showed that it is red. The bicycle was then marked for identification as ‘MFI1’. 

11.	This Court’s predecessor then clarified with the Complainant if the entire frame was black and painted with green with the word “mountain” and the Complainant replied that when the Police scratched it was black. The bicycle was brought closer to the Court to observe, and it was noted that the scrapped gold colour revealed the black and green colours.

12.	Prosecution’s second witness was Samuel Aditiya Ram (‘Mr. Ram’) who stated that he had given a statement to the Police about a bicycle which was stolen and that all the facts were in his statement. He stated that his bicycle was green and black and that it had been stolen from his house on 10 May 2021. Mr. Ram’s statements were shown to him and he confirmed that those were his statements by identifying his signature. Prosecution then tendered the statement dated 7 May 2021 as ‘PEX2A’ and statement dated 10 May 2021 as ‘PEX2B’. 

13.	Mr. Ram then stated that he had removed the guard and that if the bicycle was shown to him, he could identify it. The bicycle was then shown to Mr. Ram and he confirmed that it was his bicycle which was black and green and chrome. He then stated that he had scratched the paint of the tyre out, it was chrome. He then stated that someone painted over the chrome rim. It was observed that the green colours could be seen on closer look at the front of the bicycle.

14.	Prosecution’s third witness was PC 3868 Yashwant Singh (‘PC Yashwant’) who stated that he was aware of a theft case where the Accused, Kunal Ram, stole a mountain bike from Vunisamoloa. He stated that he was in the process of recovering sheep when he saw the bicycle which was stolen. PC Yashwant informed that he gave a statement on 10 May 2021 and that he had signed the declaration part and when shown his statement, he confirmed the same by showing his signature. PC Yashwant’s statement was then tendered as ‘PEX3’. 

15.	PC Yashwant then stated that he had seen the same bicycle picture from PC Vipin when he was investigating the matter and that it was the same bicycle he had seen at Kunal Ram’s house and that it was a Land Ranger Mountain bike. When shown the bicycle he stated that it was the same Land Ranger bike except the colour. When questioned when he had seen the bike, PC Yashwant stated that he saw it on the 6th and informed Vipin on the 7th and on the 8th went to raid it but could not locate. He then stated that after 3-4 days he saw that the bicycle was recovered.

16.	PC 5538 Amardeep Singh (‘PC Amardeep’) was Prosecution’s fourth witness. He testified that he joined the Fiji Police Force in 2017 and that he was present for a case of bicycle theft which he had identified. It was a black, green and red stripe mountain bike. He stated that he had seen the bicycle when he had gone to arrest a suspect at Koronubu. He was then later shown a picture of a stolen bicycle and on seeing the picture, he remembered that he saw the bicycle a few days back at the suspect’s house. The suspect was Kunal Ram. He further stated that he had given a statement to the Police on 10 May 2021. PC Amardeep’s statement was then tendered as ‘PEX4’. PC Amardeep then stated that he had seen the bicycle at the station and it was the same shape and size but the colour was different. He stated that when he saw it, it was green and grey strip but when he saw it at the Police Station, it was golden in colour.

17.	The next witness for Prosecution was PC 5317 Vipindar (‘PC Vipin’) who was the Investigating Officer for the bicycle theft from Vunisamaloa. He stated that the bicycle was a green land bicycle with green coating. He stated that when the Complainant reported the theft, he (PC Vipin) had shown a picture to PC Ashwar and PC Amar, who had informed that they had seen the bicycle at Kunal Ram’s place. 

18.	PC Vipin then stated that he, PC Anwar and PC Ashwar formed a team then they went to Koronubu to Kunal Ram’s place. They had asked the family regarding the bicycle but they all denied seeing the bicycle. He then stated that they conducted the search with a search warrant and they found the bicycle. 

19.	PC Vipin then testified that the next day they went to Koronubu and they had been informed that the family had moved to Bilolo. On going to Bilolo, the following day, the family denied and informed that he had brought from a friend but he did not release information about who he brought the bicycle from. 

20.	PC Vipin then stated that they went to Bilolo and then he showed us the bicycle which he was hiding at the back of the house. The colour had changed and then they brought the bicycle to the station and contacted the complainant to come. PC Vipin stated ‘he scratched the bicycle we all see that the colour was green, grey & black’. The father and son identified the bicycle. He stated that they found the bicycle at Kunal Ram’s place and it was painted golden. It was a Land Ranger Mountain Bike. PC Vipin then identified the bicycle and confirmed that it was the same bicycle he had ceased from Kunal Ram’s place and had exhibited it. He stated that he scratched the paint and he pointed to there the scrape marks were. PC Vipin identified ‘MFI1’. 

21.	PC Vipn then stated that at Koronubu they had also identified the can spray, which was a golden can and that DC Vimal, the CSI Officer took the photograph and exhibited it. PC Vipin then stated that he had taken a photo of Kunal Ram for CRO purposes and that he could identify the person if the photo was shown to him. When shown the photo, he confirmed that that was the same person he had charged, Kunal Ram. The photograph of Kunal Ram was then tendered as ‘PEX5’.

22.	Prosecution’s next witness was DC 3651 Vimal Sharma (‘DC Vimal’) who had photographed the bicycle and shoes. He stated that the photograph was taken in Bilolo and Koronubu with a Canon branded camera. After taking the photographs, he printed it in colour and then handed over to the IO for investigation purposes. Photographs were then shown to DC Vimal and he confirmed that had taken the photographs and showed his handwriting, stamp and signature. The photographs were then tendered as ‘PEX6’.

23.	Prosecution’s last witness was WPC 3884 Shiwani Shaleshni (“WPC Shiwani’) who is the current exhibit writer in charge of keeping all the exhibit. She stated that all the exhibits were handed over to her by the previous exhibit writer. She had been informed of the bicycle and brought a golden bicycle to Prosecution and was told to hand it over to Prosecutor Venu. She stated that it was exhibited by could not recall the Exhibit Number. ‘MFI1’ was then shown to WPC Shiwani and she confirmed that it was the same bicycle that she had taken out of the Exhibit Room and brought to Court. She then identified the Exhibit Number 2698/21 which was written on the Exhibit Card. The golden bicycle was then tendered as ‘PEX7’.

24.	As the Accused was not present and not represented, there was no cross-examination on his behalf. The Court will consider the evidence of the witnesses separately and collectively and ensure that all due consideration will be provided to ensure that the Accused is afforded a fair trial in his absence.

Preliminary Point

25.	From my reading of my predecessor’s note, I have observed that Prosecution had tendered the statements of witnesses who were present and gave evidence in Court. The basis of Prosecution tendering these statements was pursuant to section 134 of the Criminal Procedure Act (‘the Act’). For ease of reference, I will reproduce this section herein:

“134. — (1) In any criminal proceedings, a written statement by any person shall, if such of the conditions mentioned in sub-section (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The conditions referred to in sub-section (1) shall be that —

(a)	the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his or her knowledge and belief and that he or she made the statement knowing that, if it were tendered in evidence, he or she would be liable to prosecution for any statement in it which he or she knew to be false or did not believe to be true;

(c) at least 28 clear days before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings;

(d) none of the other parties or their lawyers within 14 days from the service of the copy of the statement serves a notice on the party so proposing, objecting to the statement being tendered in evidence under this section.

(3) The conditions stated in sub-section (2) (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be tendered.

(4) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section—

(a) if the statement is made by a person under the age of 21 years, it shall state the age of the person;

(b) if it is made by a person who cannot read it, it shall be read to the person before signature in a language he or she understands and shall be accompanied by a declaration by the person who read the statement to the effect that it was so read; and

(c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under sub-section (2)(c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy of it.

(5) Notwithstanding that a written statement made by any person may be admissible as evidence under this section —

(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence; and

(b) the court may of its own motion, and shall on the application of any party to the proceedings, require that person to attend before the court and give evidence or to submit to cross-examination.

(6) So much of any statement as is admitted in evidence under this section shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.

(7) Any document or object referred to as an exhibit and identified in a written statement rendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.

(8) A document required by this section to be served on any person may be served—

(a) by delivering it to the person or to his or her lawyer; or

(b) by addressing it to the person and leaving it at his or her usual or last known place of abode or place of business or by addressing it to his or her lawyer and leaving it at his or her office; or

(c) by sending it by registered post to the person at his or her last known place of residence or place of business, or addressed to the person’s lawyer at his or her office; or

(d) in the case of a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office or sending it by registered post addressed to the secretary or clerk of that body at that office.

(9) The provisions of this section are subject to any provisions of any law dealing with the giving and admissibility of evidence in criminal cases, and shall be read and applied subject to the provisions of such a law.”

26.	In State v Navunivesi Criminal Case No. HAC 318 of 2015 (12 September 2018) when dealing with an application pursuant to section 134, His Lordship Justice Hamza opined:

[12] However, in terms of Section 134 (2) (c) of the Criminal Procedure Act, at least 28 clear days before the hearing at which the statement is to be tendered in evidence, a copy of the statement must be served on the defence by the prosecution (the party proposing to tender the said statement in evidence). The prosecution submits that the statement of the complainant has already been provided to the Accused at the time the disclosures in this case were served on him.

[13] However, it is my opinion, that the notice envisaged in terms of Section 134 (2) (c) of the Criminal Procedure Act, is a notice that must be given by the prosecution indicating its intention to use such a statement as evidence. This notification would be in addition to serving the relevant statement on the defence, along with the disclosures. This notice indicating the intention of the prosecution to use such a statement as evidence, must be given at least 28 clear days prior to the hearing at which the statement is to be tendered as evidence.

[14] Where notice is given in terms of Section 134 (2) (c) of the Criminal Procedure Act, it would enable the other party or their lawyers (in this case the Accused), to object to the statement being so tendered in evidence, if they wish to do so, in terms of Section 134 (2) (d) of the Criminal Procedure Act. Any such objection should be made within 14 days from the date notice was served on the defence.

[15] I find that in this case, no such notice has been given by the prosecution to the defence in terms of Section 134 (2) (c) of the Criminal Procedure Act. In my view, this is a mandatory requirement.

27.	Thus, it is mandatory for the party wanting to rely on the statement to give notice indicating its intention to use such statements as evidence and that this notification would be in addition to serving the relevant statement on the defence along with the disclosures. Merely serving the disclosures on an accused is not sufficient to say that notice has been given as stipulated under section 134(2)(c) of the Act.

28.	Moreover, the Fiji Court of Appeal in the case of Tawananumi v State Criminal Appeal No. AAU 131 of 2018 (27 July 2023) when dealing with previous consistent statements as a ground of appeal, stated: 

[14] The basis underlying the general rule of evidence on prior or previous consistent statements being inadmissible, is that a party is not permitted to make evidence for himself: R v Roberts 28 Cr. App. R 102. The exceptions at common law apart from the statutory exception under section 134, are:

(i)	statement’s constituting recent complaints in sexual cases,
(ii)	statement’s forming part of res gestae and
(iii)	statement’s which tended to rebut an allegation of recent fabrication.

[15] Under both (i) and (iii) a statement is not admissible as evidence of the truth of its contents but may be admitted only to show consistency on the part of the complainant.

[16] In Conibeer v The State [2017] FJCA 135; AAU0074.2013 (30 November, 2017, the court stated (at paragraph 28) :

“As a general rule, a prior consistent statement of a witness is inadmissible evidence. However, there are many exceptions to this rule. One of the exceptions to the rule is in sexual cases. In sexual cases, the evidence, a recent complaint of the sexual assault made to another person by the complainant is allowed to show the consistency of the conduct of the complainant and to negative consent.”

29.	Therefore, a previous consistent statement can only be admissible in evidence in sexual cases, cases of res gestae – dying declaration and to rebut an allegation of recent fabrication. 

30.	Given that the tendering of the statements in this case for the Complainant, Mr. Ram, PC Yashwant and PC Amardeep did not comply with section 134(2)(c) of the Criminal Procedure Act and does not fall within the exceptions of previous consistent statement being held admissible, I am inclined not to rely on the same when evaluating the evidence in the matter and I will only consider the sworn evidence of these witnesses in Court.

Evaluation of Evidence

31.	In evaluating the evidence, the Court must determine the testimonial trustworthiness of the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).

32.	For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for theft, which are:

i.	the accused
ii.	dishonestly appropriates
iii.	property belonging to another
iv.	with the intention of permanently depriving the other of the said property.

33.	With respect to the elements that it was the Accused who committed this offence, Prosecution relies on the principle of recent possession. 

34.	In the case of Boila v State; Criminal Appeal No. AAU 049 of 2015 (4 May 2021) His Lordship Justice Prematilaka referred to the following cases when discussing recent possession

[17] In Wainiqolo v The State [2006] FJCA 49; AAU0061.2005 (28 July 2006) the Court of Appeal said:

‘19] The principal ground relates to the so-called doctrine of recent possession which is that where property has been stolen and is found in the possession of the accused shortly after the theft, it is open to the court to convict the person in whose possession the property is found of theft or receiving. It is really no more than a matter of common sense and a Court can expect assessors properly directed to look at all the surrounding circumstances shown on the evidence in reaching their decision. Clearly the type of circumstances which will be relevant are the length of time between the taking and the finding of the property with the accused, the nature of the property and the lack of any reasonable or credible explanation for the accused’s possession of the property. What is recent in these terms is also to be measured against the surrounding evidence.’

[18] The 'doctrine of recent possession' may be applied in appropriate cases [see David Kio v R [Unreported Criminal Appeal Case No. 11 of 1977; Davis CJ; at page 3]. In Trainer v R [1906] HCA 50; (1906) 4 CLR 126 Griffith CJ explained the 'doctrine of recent possession' at page 132:

'It is a well-known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen according to the circumstances of the case.

Prima facie the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it.' (emphasis added)’

[19] R v Langmead [1864] EngR 47; (1864) Le & Ca 427; 169 ER 1459 Blackburn J stated at pages 441 and 1464 respectively:

'I do not agree ... that recent possession is not as vehement evidence of receiving as of stealing. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.'

[20] Dickson C.J. and McIntyre, Le Dain and La Forest JJ. said in R v Kowlyk
[1988] 2 SCR 59:

‘The doctrine of recent possession may be succinctly stated. Upon proof of the unexplained possession of recently stolen property, the trier of fact may--but not must--draw an inference of guilt of theft or of offences incidental thereto. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offence. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. The doctrine will not apply when an explanation is offered which might reasonably be true even if the trier of fact is not satisfied of its truth.’

[21] In Beumazi Ndoro Chaila - Appellant and Republic - Respondent [2016] eKLR the Court of Appeal at Mombasa (Kenya) summarized the following principles relating to ‘recent possession’:

‘............The inference is drawn from possession of recently stolen property rather than recently taking possession of stolen property.
However, before the court can draw the inference from the accused’s possession of recently stolen property, it must be satisfied of five matters: i. That the accused was in possession of the property; ii. That the property was positively identified by the complainant; iii. That the property was recently stolen; iv. That the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and the circumstances of the case, recent; v. That there are no co-existing circumstances, which point to any other person as having been in possession and;

The doctrine being a rebuttal presumption of facts is rebuttable with an accused being called upon to offer an explanation, which if he fails to do an inference is drawn that he either stole or is guilty receiver.

In proving possession, the prosecution must establish that the accused had possession of the property in question, i.e. had custody of or control over that property and intended to have custody or exercise control over it. The fact that a third party has physical possession of the property does not mean it could not have been possessed by the accused. In this regard, the prosecution does not need to prove that the accused was actually caught with the property in his or her possession. It is sufficient to prove that the accused possessed the property at the relevant time.

Again, the term “recent” depends, as already stated, on the nature of the property. Frequently circulated property such as bank notes remain “recently stolen” for a shorter period than less frequently traded objects like cars, books, clothes, electronic appliances etc.’

35.	In State v Anderson; Criminal Case No: HAC 31 of 2018 (26 July 2019) His Lordship Justice Rajasinghe succinctly discussed the principle of recent possession wherein he stated:

“17. In order to established the principle of recent possession of stolen property, the prosecution is required to prove the following elements that:

1. The two accused possessed the goods, 
2. The goods were recently stolen items, 
3. The said goods are the subject matter of the complaint by the complainant, (the good found in possession of the accused are the same goods that were stolen from the complainant),
4. There are no reasonable explanations by the accused in regards to their possession of the said goods.

36.	The above principles stated in Anderson [supra] is consistent with the principles stated in the plethora of cases referred to in Boila [supra]. 

37.	To establish that it was the Accused who was in possession of the stolen Land Ranger Mountain Bicycle, Prosecution relies on the evidence of PC Yashwant, PC Amardeep and PC Vipin.

38.	PC Yashwant’s evidence was that when dealing with another case, he had come across a Land Ranger Mountain bicycle at a Kunal Ram’s house and when shown the bicycle, he had stated that it was the same bicycle he had seen except the colour. PC Yashwant stated that he had seen the bicycle on the 6th and informed PC Vipin on the 7th and on the 8th went to raid but could not locate the bicycle. He then saw the bicycle 3-4 days later after it had been recovered. 

39.	PC Amardeep’s evidence was that when he had been shown a photograph of a stolen bike, he remembered seeing the bicycle at a Kunal Ram’s house when he went to arrest him. PC Amardeep then stated that he had seen the bicycle next at the station and that it had been the same shape and size but that the colour was different – it was golden in colour.

40.	PC Vipin was the Investigating Officer in the matter and his evidence was that he had shown a photograph of the bicycle to PC Amardeep and PC Ashwar, who then informed him that they had seen the bicycle at Kunal Ram’s place. After receiving this information, PC Vipin carried out a search with a search warrant at Kunal Ram’s place and they found the bicycle, a Land Ranger Mountain Bicycle but it had been painted golden. 

41.	PC Vipin also stated in his evidence that Kunal Ram’s family informed that he had brought the bicycle from a friend but he did not release information about who be brought the bicycle from. PC Vipin’s evidence also touched on that when they went to Bilolo and then he had showed them the bicycle which he was hiding at the back of the house.

42.	PC Vipin then stated that he had taken a photograph of Kunal Ram for CRO purposes and that he could identify the person if a photo was shown to him. When PEX5 was shown to PC Vipin, he confirmed that the person in the photo was the same person he had charged – Kunal Ram, the Accused in this matter.

43.	The above evidence highlights that PC Yashwant and PC Amardeep had seen the Land Ranger Mountain Bike at the Accused’s residence, that upon PC Amardeep being shown a photograph and informed that it had been stolen, PC Amardeep was able to inform that he had seen the bicycle a few days prior at Kunal Ram’s house. PC Vipin evidence highlights that this bicycle was recovered whilst it was in the Accused’s possession. 

44.	The evidence of the Complainant – Ajay Vikash Chand and his son – Samuel Aditiya Ram confirms that a bicycle coloured black and green and chrome had been stolen. Mr. Ram was the only witness who gave evidence that the bicycle was stolen on 10 May 2021. 

45.	Both the Complainant and Mr. Ram also gave evidence to the effect that the bicycle had been recovered and upon identifying it, they had noticed that someone had painted the bicycle a gold/golden colour. However, after scratching the paint off, both the Complainant and Mr. Ram stated that it was the bicycle that the Complainant had bought for Mr. Ram given that the scratched paint revealed the chrome colour as well as the red gear.

46.	The evidence of PC Vipin highlighted that upon finding the bicycle at Kunal Ram’s place, he contacted the Complainant to come and identify the bicycle. PC Vipin then stated that the Complainant and Mr. Ram identified the bicycle at the Station. Further, when giving evidence in Court, both the Complainant and Mr. Ram, upon being shown the bicycle, identified the bicycle in Court even though it had been gold/golden in colour as upon the paint being scratched, they were both able to highlight the original colours of the bicycle.

47.	It is important to highlight at this juncture that the only evidence of the time the Land Ranger Mountain Bicycle was stolen came from the evidence of Mr. Ram who had stated in Court that the stolen date was 10 May 2021. No evidence was led from PC Vipin as to when exactly he had recovered the bicycle from the Accused. Thus, the Court is unable to determine the length of time from the bicycle being stolen to when it was found in the possession of the Accused.

48.	Further, according to Griffith CJ in the case of Trainer v R [1906] HCA 50 as referred to in Boila [supra] it is well established that the evidence of recent possession of stolen property is prima facie  that the person in possession stole the property but if the circumstances are such as to show it be impossible that the person stole it then it may be inferred that he received it knowing it to have been stolen.

49.	Moreover, in R v Kowlyk [1988] 2 SCR 59 which was also referred to in Boila [supra] it was stated that where it would arise whether the accused was a thief or merely a possessor, it is for the tier of fact, upon consideration of all the circumstances to decide which inference should be drawn. The doctrine will not apply when an explanation is offered which might reasonably be true even if the trier of fact is not satisfied of its truth.

50.	In the case of Timo v State [2019] FJSC 1; CAV0022.2018 (25 April 2019), the above principles in Trainer v R [1906] HCA 50 and R v Kowlyk [1988] 2 SCR 59 were also expounded on by His Lordship Justice Keith:

“Indeed, this was a classic example of the application of that strand of circumstantial evidence commonly called “recent possession”. In cases where a defendant is found to have been in possession of property which has been stolen very recently, so that it can be said that he was in recent possession of it such that it plainly calls for an explanation from him about how he came to be in possession of it, and either no explanation is given, or such explanation as is given is untrue, the court is entitled to infer, looking at all the relevant circumstances, that the defendant stole the property in question or was a party to its theft. And if the property had been stolen in a burglary or a robbery, the court is entitled to infer, again looking at all the relevant circumstances, that the defendant took part in the burglary or the robbery in which the property was stolen: see, for example, Blackstone’s Criminal Practice 2016, paras F.63-F.64, and applied in Fiji in Wainiqolo v The State [2006] FJCA 49 and Rokodreu v The State [2018] FJCA 209.”

51.	Thus, by ascertaining the relevant circumstances, the Court is entitled to infer that the Accused was the one who stole the Land Ranger Mountain Bicycle or that he received the bicycle knowing that it had been stolen. PC Vipin’s evidence was that Kunal Ram’s family informed that he had brought the bicycle from a friend but he did not release information about who be brought the bicycle from. No evidence was adduced by Prosecution that a further investigation into this had been conducted to ascertain whether this information from the Accused was correct or not. Thus, the only indisputable inference that the Court can draw, which can be reasonably true, is that the Accused had brought the bicycle from a friend and cannot rely on the doctrine of recent possession.

52.	Now, turning to the second count of Breach of Bail Condition, the elements for breach of bail condition are:

i.	the accused
ii.	who has been released on bail
iii.	and who fails without reasonable cause
iv.	breaches any condition of bail imposed by court commits an offence.

53.	Prosecution failed to elicit any evidence that when the Accused had allegedly committed the offence of Theft, he had been on bail for another matter and one of his bail conditions was not to re-offend.

54.	Consequently, this Court is satisfied that the Prosecution has failed to present evidence to prove the elements of Breach of Bail Condition beyond a reasonable doubt.

Determination

55.	I find that Prosecution has not discharged its burden in proving all the elements of the offences of Theft and Breach of Bail Condition beyond reasonable doubt.

56.	I, therefore, find the Accused, Kunal Ram, not guilty as charged for both Counts and hereby acquit him forthwith.

57.	Any party aggrieved with the Court’s decision has 28 days to appeal.

N. Mishra
Resident Magistrate