IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 26 of 2007

PUBLIC PROSECUTOR

-v-

KENNETH ATUARY

Coram: C.N. Tuohy J

Date of Hearing: 11th September 2007
Date of Decision: 11th September 2007

Counsels: Mr. Leon for Claimant
Mr. Toa for Defendant 

JUDGMENT

1.	Kenneth Atuary is charged in an information containing 2 charges or counts.

Count 1 is a charge of unlawful entry under section 143 of the Penal Code Act. The particulars of the offence are as follows:

Count 1
Kenneth Atuary samtaem long namba 10th Octoba 2006, long premises blong white man ia Mr. Alain long Tasiriki area, yu bin unlawfully enterem premises ia wetem tingting blong mekem trabol olsem stil.

The second count is one of theft under section 125 (a) of the Penal Code Act. The particulars are that:

Count 2
Kenneth Atuary samtaem long namba 10 October 2006, long haos blong white man ia Alain long Tasiriki, yu bin menim blong stilim ol items olsem ol electric tools, we long taem ia yu save gud se oli property blong narafala man.

2.	I heard evidence in relation to this matter on the 4th September 2007 and then again on the 7th September 2007 when the evidence was completed and I adjourned the trial until today 11th September 2007 for completion of final addresses and the giving of verdict and I have heard the final addresses today. 

3.	Before considering the evidence and the charges I record that as in all criminal trials the onus of proving these charges rests on the prosecution which brings the charges. That onus rest on the prosecution from beginning to end of the trial. In this case the accused chose to give evidence himself. He did not need to do so. The fact that he did so does not change the onus of proof. That remains on the prosecution from start to finish. The second important matter is the standard of proof. The law is that each charge and each element of each charge, must be proven beyond reasonable doubt before the Court can convict on that charge. What that means is that the Court cannot convict unless it is sure from the evidence that the accused is guilty of that charge and each element of it. If Court is sure in that way, it is the Court’s duty to convict the accused. If on the other hand the Court is left with a reasonable doubt on any essential matter then it is the duty of the Court to acquit the accused. And that is the approach which I bring to bear in considering the evidence and the charges in this case.

4. I do not intend to traverse the evidence generally but simply to refer to it when necessary in discussing whether or not the prosecution has proven the charges. 

5. First is the charge under section 143 of the Penal Code Act. 

Section 143 of the Penal Code Act provides as follows:

No person shall enter or be in any house, building, tent, vessel or other place with intent to commit an offence therein;

Subsection (2) says that what I just read shall apply;

"Whether or not the offender entered the premises with lawful authority or whether or not he broke any part of the premises in order to enter them and whether or not he obtained entrance by means of threat or artifice, or by collusion with any person in the premises". 

6. In other words, this is not a charge of burglary, it is a charge of unlawful entry, Under the old law of burglary it was necessary for the prosecution to prove that there had been a breaking, as well as an entering of the house. Under section 143 of the Penal Code Act, it is no longer necessary to prove a breaking into. All it is necessary to prove is that the accused entered premises with intent to commit an offence in there. 

7. In this case the prosecution case is that the accused entered the builders shed of a Mr. Arnaud Guinde at Tassiriki with intend to commit therein the offence of theft. 

8. The second count is a count of theft. It is theft of tools from that building shed, which it is the alleged the accused carried out. 

The section relating to theft in the law is section 125 (a) which simply says:

"No person shall cause loss to another by theft" 

Section 122 defines theft at some length. But the basic definition is subsection (1) which says: 

"A person commits theft 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 intend, at the time of such taking, permanently to deprive the owner thereof; 

9. The prosecution case here is quite simple. Its case is that the evidence it has called should satisfy the Court that the accused entered that builder’s shed, in fact broke the lock to do so, on the night of the 10th October 2006 and that he stole from within the builder’s shed some electric tools which he later sold to a Mr. Pakokoto and those tools were later recovered by the Police. 

10. First of all I am satisfied that an offence of unlawful entry and an offence of theft took place in relation to these tools in this builder’s shed on the 10th October 2006. I am satisfied of that from the evidence of Mr. Guinde, his partner Mr. Alain Ajobian and also from the evidence of Kalomtak Kalor a security officer who was in touch with Mr. Alain immediately after the theft and was instrumental in recovering the goods.

11. Their evidence satisfies me that there was a builder’s shed situated on the property in Tassiriki where Mr. Guinde was carrying out building work together with Mr. Ajobian. It satisfies me that inside that building shed were a number of electrical tools; an electric saw, a jig saw, a planer, a router, a drill and a grinder; that those tools were locked in there, and that on the 10th October 2006, the shed was discovered with the lock broken and the tools missing. 

12. That satisfies me that someone did unlawfully enter that builder’s shed, with intent to commit the crime of theft; and that someone did in fact commit the crime of theft. That is they took the tools and carried them away with the intent to permanently deprive the owner off them and without the consent of the owner and fraudulently without a claim of right. 

13. The issue is whether it has been proven that the accused was the person who carried out the burglary and the theft. The evidence against him came primarily from Abel Namuri and Mr. Pakokoto, they work at Shefa Province. Mr. Pakokoto’s evidence was that he had met the accused at Uncle Bill’s, he had been offered some tools by the accused; that he arranged to meet the accused in Tassiriki, near the Blue Store; that the accused was in possession of various electrical tools; that he gave them to Mr. Pakokoto who took them to Abel Namuri’s house and Mr. Pakokoto gave the accused 15,000 VT for the tools. Those tools were later recovered by the Police and returned to Mr. Guinde and the evidence does establish that there was chain of evidence there - that the tools which the accused was in possession of at Tassiriki when he passed them to Pakokoto, were the same tools that were taken from the builder’s shed. Because the tools that the accused was in possession of, were traced back by evidence through to Mr. Kalomtak who took them back and they were identified by Mr. Ajobian.

14. So there is no doubt that the accused was in possession of the stolen tools, the result of the unlawful entry at the Tassiriki area near the Blue Store. The evidence did not establish the date when the accused had possession of them. However it did establish that it must have been before the 24th October 2006 because that is the day on which the tools were returned to their owner, having previously been uplifted by the Police or delivered back to the Police by Mr. Pakokoto. So it must have been at least some days before the 24th October 2006 that the accused sold them to Pakokoto. 

15. The accused himself gave evidence. He acknowledged being in possession of tools, electrical tools of the type stolen in the burglary. He acknowledged offering them to Pakokoto. He acknowledged that Pakokoto came to Tassiriki and he handed them over to him. He acknowledged Pakokoto gave him 15,000 VT for them, although he said that he did not ask for any money which is a very strange piece of evidence. I am satisfied that the accused did indeed sell these stolen tools to Mr. Pakokoto, and that he sold them in a matter of days following the burglary and he was in possession of them within a short distance from where they were stolen in the same general area of Tassiriki.

16. There is no direct evidence that the accused entered the building shed and stole the tools himself. However, it has always been acknowledged as a matter of law that a Court can draw inferences that is deductions from evidence, that if a person was in possession of goods which had been recently stolen or burgled, that that person stole or burgled those goods. In this case I need to say first that I do not believe the accused’s evidence, that he simply found by the side of the road, these tools. To expect the Court to believe that, is ridiculous. The idea that someone would break into this building shed, steal these goods and simply leave them by the side of the road for someone who wandered past like Mr. Atuary to find and sell is stretching the bounds of credibility further than I am prepared to go. It is a pathetic explanation which I do not believe. It is obvious that when Mr. Atuary met Mr. Pakototo in Uncle Bill’s, he knew where the tools were, he knew that they were on a spot in Tassiriki not far from where they had been stolen. This was within a matter of days less than 2 weeks, and possibly earlier from the time they were stolen. 

17. When a person is found so soon after the burglary or theft, in possession of the items, when he is unable to give a credible explanation for his possession of them and when he is prepared to sell them to someone else, I am prepared to draw the inference, that he was the person who stole them. And in this case also in order to steal them, entered unlawfully the builder’s shed. 

18. On the evidence I have heard I am satisfied of that beyond reasonable doubt. I have considered the possibility of whether he was merely the receiver for someone else. Knowing they were stolen and selling on behalf of someone else who, himself, had broken and entered. I do not think this is a reasonable possibility in this case. There is no suggestion of any one else having any interest in the money that he received and he seems to have carried on the whole operation of storing for a time, these goods and selling them on his own behalf. 

19. 	So I am satisfied beyond reasonable doubt, that he was the thief and he was the burglar, if I can call it that. So I find him guilty.

Dated at Port Vila, this 11th day of September, 2007

BY THE COURT

C.N. TUOHY
Judge