IN THE RESIDENT MAGISTRATE'S COURT
AT LAUTOKA FIJI ISLANDS

CRIMINAL CASE NO 777 OF 2013

STATE

V

JACOB VUNIBOLA

BEFORE : Resident Magistrate, Kashyapa Wickaramasekara
DATE : Tuesday 01st of March 2016
COUNSEL : PC. Theodore for the Prosecution
Ms. Hazelman (L/A/C) for the Accused

RULING ON NO CASE TO ANSWER APPLICATION

A.	INTRODUCTION

1.	Accused is charged with one count of Burglary and one count of Theft contrary to Sections 312 (1) and 291 (1) of the Crimes Decree 2009. The charges read thus;

Amended Charge

First Count

Statement of Offence (a) 

Burglary: Contrary to Section 312 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b) Jacob Vunibola, on the 21st December 2013 at Lautoka in the Western Division, entered into the dwelling house of Rizwan Khan as a trespasser with intent to commit theft.

Second Count

Statement of Offence (a) 

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

Particulars of Offence (b) Jacob Vunibola, on the 21st December 2013 at Lautoka in the Western Division, dishonestly appropriated 2 x Nokia Mobile phones valued at $ 300.00 and 1 x Penknife valued at $ 20.00 all to the value of $ 320.00 the property of Rizwan with the intention of permanently depriving the said Rizwan khan.

2.	Accused pleaded not guilty to the second count and pleaded guilty on the first count. However as he disputed the SOF in respect of the first count, a not guilty plea was recorded on both the counts and the matter was fixed for Hearing on 19/02/2016. 

3.	Three witnesses were called for the prosecution. Two lay witnesses and the Investigating Officer gave evidence and the case for the Prosecution was concluded. At the conclusion of the Prosecution's case; counsel for the Accused moved leave to make submissions on a no case to answer. Written submissions were filed on the 23rd of February 2016 by the counsel for the Defence. Prosecution informed court that they would not be filing any submissions in reply and invited the court to make its ruling on the available evidence. 

B.	THE LAW

4.	Section 178 of the Criminal Procedure Decree reads as follows. 

178. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused.  Prior to the existence of the Criminal Procedure Decree the relevant section of the law was section 210 of the old Criminal Procedure Code which was an identical section to section 178 of the Criminal Procedure Decree 2009.

5.	As per the provisions of the above section the main issue for the court to consider at the conclusion of the Prosecution's case is whether there is evidence to establish each element of the offences. Thus I shall now turn to the Charges and their elements. Accused in this case is charged with one count of Burglary and one count of Theft contrary to Sections 312 (1) and 291 (1) of the Crimes Decree 2009. The relevant penal sections read thus;

312. — (1) A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building.

Penalty — Imprisonment for 13 years. 

291. — (1) 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.

Penalty — Imprisonment for 10 years. 

6.	Accordingly the elements of the offence of Burglary can be identified as follows;

I.	A person,
II.	Enters or remains in a building, 
III.	As a trespasser,
IV.	With intent to commit theft of a particular item of property in the building.

7.	As per section 291 (1) of the Crimes Decree 2009, the elements of Theft are as follows;

I.	A person
II.	Dishonestly,
III.	Appropriates property belonging to another,
IV.	With the intention of permanently depriving the other of the property.

8.	Section 292 of the Crime Decree 2009 has set out special rules in respect of the interpretation of dishonesty. It reads thus;

292.—(1) 	For the purposes of this Division, a person's appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) 	Sub-section (1) does not apply if the person appropriating the property held it as trustee or personal representative.
(3) 	F or the purposes of this Division, a person's appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

9.	Appropriation of property is defined in Section 293;

 293.—(1)	 For the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property.

(2) 	Sub-section (1) applies to a case where a person obtains possession of property (innocently or not) without committing theft, and there is a later assumption of rights without consent by keeping or dealing with it as owner.

(3) 	For the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor's title, amount to an appropriation of the property.

10.	Section 300 of the Crimes Decree interprets the element of "Intention of permanently depriving a person of property. It reads thus;

300.—(1) 	For the purposes of this Division, if—

(a) 	 a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and

(b) 	the person's intention is to treat the thing as the person's own to dispose of regardless of the other's rights; the person has the intention of permanently depriving the other of it.

(2) 	For the purposes of this section, a borrowing or lending of a thing amounts to treating the thing as the borrower's or lender's own to dispose of regardless of another's rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(3) 	For the purposes of this section, if—

(a) 	a person has possession or control (lawfully or not) of property belonging to another; and

(b) 	the person parts with the property under a condition as to its return that the person may not be able to perform; and

(c) 	the parting is done for purposes of the person's own and without the other's authority—the parting is taken to amount to treating the property as the person's own to dispose of regardless of the other's rights.

11. 	The law on no case to answer in the Magistrate's Court is well settled. Justice Goundar stated in State v Abdul Aiyas; HAC 33 of 2009 at Para 5: 

 "The test for no case to answer in the Magistrate's Court under Section 210 is adopted from the Practice Direction, issued by the Queen's Bench Division in England and reported in [1962] 1 All. E. R 448 (Moidean v R (1976) 27 FLR 206).There are two limbs to the test under section 210:

(i) Whether there is no evidence to prove an essential element of the charged offence;
(ii) Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no tribunal could convict.
(iii) An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates Court."

12.	In Sahib v The State; HAA0022J.2005S (28 April 2005) Hon. Shameem J held;

"In the Magistrates' Courts, both tests apply. So the magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence,  And second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case."

13.	In the case of Moidean v R (1976) 27 FLR 206 the Appellate court of Fiji referring to the practice direction issued by the Queen's Bench Division in England as reported in [1962] 1 All. E. R 448 quoted as follows;  "A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."(Emphasis Added)

C.	EVIDENCE

14.	The first witness for the Prosecution was the complainant, Mohammed Imran Khan who testified to the effect that on a Saturday in the year 2013, whilst at work he was informed by his neighbour that his house had had been broken into. He had then informed the police. When he had come home he had noticed his laptop, two Nokia phones, jewellery, a penknife, hair cutting machine and a t-shirt had gone missing from the house. He further claimed that one of his cousins, Asif Khan, had seen the intruders and had even managed to take pictures of them. He was on the 04th of January 2014 called into the police to identify some of the stolen items recovered by the police. He claimed he identified one Nokia phone, some jewellery and the penknife that day. The prosecutor then led evidence to the effect that the accused was at the station at that time and as such for the complainant to identify him. As there was no basis for this identification court did not allow it. There were several pieces of hearsay evidence given by the complainant during his evidence in chief of which this court has not relied upon.

15.	Next witness for the Prosecution was Noa Nadruku, a 14 year old child. His evidence was to the effect that whilst he was engaged in grass cutting at the house of one Mr. Ali at Drasa, he had heard some people shouting 'Chor, Chor'. He had then followed two Fijian boys who were running towards the sugar cane field from the direction the shouts were heard. He identified the accused as one of the boys by the name Jacob and had seen both the boys carrying bags with them. As he knew the boys he had followed them right to their house where he had seen from an opening in the house, a laptop and some other stuff. He then claimed that the other boy was known as Colati. Thereafter all of them had gone to the town as Colati had seen the witness peeping at the house and requested him to come to the town with them. At the town the elder brother of the witness had seen him and had taken him to the police station. In the cross-examination it was brought to the notice that the witness had failed to mention in his statement to the police in respect of the portion where the witness reached the house of the accused and peeped through an opening in the house.
 
16.	Final witness for the Prosecution was DC 3821 Silio Finau, the Investigating Officer. He claimed that he received instructions to investigate this incident on the 21st of December 2013. He had visited the crime scene at Drasa with DC Jone. He had recorded the statement of the complainant. Had then arrested the accused in this case from the town and was interviewed. He further claimed he was successful in recovering part of the items from the accused. That a mobile phone, some silver jewellery and a penknife was recovered from the accused and was returned to the owner. In cross-examination he claimed that he cannot recall who the arresting officer was or whether he had recorded a statement from the arresting officer. 

D.	ANALYSIS AND FINDINGS

17.	In the light of the first test to be applied in adjudicating on an application for 'No Case to Answer' as discussed above; I shall first consider 'Whether there is no evidence to prove an essential element of the charged offence'.

18.	The first and foremost element in both these offences is that the Accused is the person who has committed the alleged offences. In the absence of evidence to establish the identity of the offender it is of no use to consider any of the other elements of the offences. The complainant in this regard sheds no light on the prosecution's case. The Investigating Officer has not given any evidence that directly link the accused to the scene of crime. From the evidence of the I/O the only piece of evidence that could have some bearing on the identification of the offender is the recovery of the stolen items from the possession of the accused. However, the Investigating Officer did not produce any of the recovered items to court for the purpose of identification nor did he give evidence that any of such items were identified by the complainant in fact to be the stolen items. As it was revealed that it was not the I/O that had arrested the accused it is not clear whether who had recovered the items. Apart from the fact that the I/O does not give any direct evidence of identification of the offender, his evidence appears to be inconsistent and unreliable especially in respect of the identification of the offender.

19.	The only witness who has identified the accused is witness, Noa Nadruku. However, when considering his evidence it is abundantly clear that he does not identify the scene of crime. As such the identification of the accused is not clearly linked to the scene of crime. In this context court consider the evidence of the I/O to see whether the I/O during his investigations had identified with this witness the scene of crime. Unfortunately, the I/O has not at least referred to this witness in his evidence. Thus there is no nexus between the evidence of the witness, Noa Nadruku and the identification of the accused in relation to this crime. 

20.	In the above analysis of the evidence for the prosecution it is the finding of this court that there is no evidence at all in respect of the identification of the offender in relation to either of the offences. Prosecution has failed to place before this court an iota of evidence for the identification of the accused in relation to the offences he is charged with.

E.	CONCLUSION

21.	Upon careful consideration of the evidence that was adduced on behalf of the prosecution's case, this court is of the view that the prosecution has manifestly failed to produce admissible or reliable evidence in respect of the most essential element of both the offences and as such the evidence for the prosecution is wholly unreliable and accordingly no reasonable tribunal would convict the accused for the offences he is charged with. 
As such the court finds that the prosecution has failed to sufficiently make out a case against the accused to require him to make a defence.

22.	Accordingly I dismiss the case and the accused is acquitted from both the charges.

F.	RIGHT OF APPEAL.

23.	28 days for appeal by or with sanction of the D.P.P.

G.	ORDERS OF THE COURT

24.	1.	That the Accused is acquitted from both the charges.
11.	That the accused to be released from prison forthwith in the event there are no other pending cases against him for which he is in remand.

L.K.Wickramasekara,
2016/03/01
Resident Magistrate.