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Public Prosecutor v Atuary - Ruling 2 [2007] VUSC 85; Criminal Case 26 of 2007 (11 September 2007)

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

Criminal Case No. 26 of 2007

PUBLIC PROSECUTOR

-v-

KENNETH ATUARY
SANO ATUARY

Coram: Judge Tuohy

Date of Hearing: 7th September 2007
Date of Decision: 7th September 2007

Counsels: Mr. Leon for Claimant
Mr. Hillary Toa for Defendants

RULING 2

1. At the end of the prosecution case in the trial of Kenneth Atuary and Sano Atuary, Mr. Toa submitted that there was no prima-facie case against either. In relation to Kenneth Atuary I have already held that the statement he made admitting the offence in not admissible as evidence because has not been proven that it was a voluntary statement. Indeed I held that the statement directly followed upon an assault by him in the police station by a police officer. However, in relation to Kenneth that was not the only evidence against him. There was very clear evidence that certain tools were stolen in the burglary of a builder’s shed on a property in Tasiriki. There was clear evidence that Kenneth Atuary was in possession of those tools immediately or very shortly after the burglary, that he had possession in the Tasiriki area and that he sold tools at a cheap price to a witness who gave evidence. There is a doctrine of recent possession in which it has been held that a person who is found in possession of goods within a short time after those goods had been taken in a burglary or a theft can be convicted of the burglary or theft itself. So there is certainly sufficient evidence regardless of the statement to amount to a prima-facie case against Kenneth Atuary.

2. As far as Sano Atuary is concerned, he is not charged with the burglary itself. He is charged with another person, Benneth Kalmet, who has not appeared for trial, that he was an accomplice to the burglary. It is alleged that Sano and Benneth Kalmet helped Kenneth Atuary by acting as a watchman at the time that Kenneth Atuary was committing the burglary on the builders she owned by Mr. Alain. There is simply no evidence against Sano whether by oversight or not I do not know but the prosecution produced no statement against Sano and there is no other evidence given by any of the other witnesses against him. I think the only witness who mentioned him was Kalmatak, the security guard who mentioned that he was on the road at Tassiriki earlier in the evening of the burglary. That is not sufficient to prove that he was acting as a watchman at the time of the burglary. Therefore the charge against Sano Atuary is dismissed and he is discharged on that charge and he may stand down.

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

BY THE COURT

C.N. TUOHY
Judge