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State v Tawake [2020] FJHC 590; HAC264.2019 (24 July 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 264 of 2019

[CRIMINAL JURISDICTION]

STATE

V

TAITUSI TAWAKE

Counsel : Mr. E. Samisoni for the State

Ms. A. Singh for the Accused

Hearing on : 22 July 2020
Summing up on : 23 July 2020
Judgment on : 24 July 2020

JUDGMENT

1. The accused is charged with the following offences;
   

[COUNT 1]

Statement of Offence

Aggravated Burglary: contrary to Section 313 (1)(a) of the Crimes Act, 2009.

Particulars of Offence

TAITUSI TAWAKE and another, on the 9^th day of July, 2019 at Kinoya, Nasinu in the Central Division, in the company of each other, entered as trespassers into the dwelling house of CATHERINE NISHA, with the intent to commit theft.

[COUNT 2]

Statement of Offence

Theft: contrary to Section 291 (1) of the Crimes Act, 2009.

Particulars of Offence

TAITUSI TAWAKE and another, on the 9^th day of July, 2019 at Kinoya, Nasinu in the Central Division, in the company of each other, dishonestly appropriated (stole) 1x Simmons television with a remote and 1x radio subwoofer the property of CATHERINE NISHA, with the intention of permanently depriving CATHERINE NISHA of the said property.

2. The assessors were directed to consider the lesser offence of burglary if they find the accused not guilty of the offence of aggravated burglary as charged on count one. They have returned with the unanimous opinion that the accused is not guilty of the first count as charged, but guilty of the lesser offence of burglary and that the accused is guilty of the second count as charged.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 23/07/20 and the evidence adduced during the trial. I do not find any cogent reason to disagree with the unanimous opinion of the assessors.
   
4. The prosecution relied on the doctrine of recent possession to prove the charges against the accused.
   
5. Four witnesses gave evidence on behalf of the prosecution and the accused opted to remain silent when his rights under section 231(2) of the Criminal Procedure Act 2009 were explained.
   
6. It is clear that the assessors were satisfied that the prosecution has proven beyond reasonable doubt that the TV that went missing from PW1’s house was found in the possession of the accused shortly after PW1’s house was broken in to. The accused did not provide an explanation for this recent possession of the stolen item.
   
7. Accordingly the prosecution has established that the offence of burglary was committed on 09/07/19 at PW1’s house and that the accused was in possession of the TV that was stolen from PW1’s house shortly after that offence was committed without any reasonable explanation.
   
8. Thus, it is established that the accused is guilty of the second count and of the offence of burglary. However, the evidence led by the prosecution does not establish beyond reasonable doubt that the accused had committed the offence of burglary in the company of one or more others.
   
9. In the circumstances, I find the accused not guilty of the first count as charged, but guilty of the lesser offence of burglary. I find the accused guilty of the second count as charged.
   
10. The accused is hereby convicted accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused