Wise v The State [1990] FJHC 3; HAA0053o.89s (2 January 1990)

IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

CRIMINAL APPEAL NO. 53 OF 1989

Between:

DAVID WISE
Appellant

v.

STATE
Respondent

Appellant in Person
Ms. A. Prasad for the Respondent

JUDGMENT

The appellant appeals against his conviction by the Suva Magistrate Court for an offence of Snack Bar Breaking, Entering and Larceny, the particulars of which reads as follows:

"Particulars of Office

DAVID WISE, on the 26th day of March, 1989 at Suva in the Central Division broke and entered the Vunimaqo Snack Bar and stole from therein cash of $35.00 and cigarettes worth $480.16 to the total value of $515.16 the property of Selina Jioji. "

At his trial the appellant initially pleaded not guilty and the prosecutor called the owner of the Snack Bar and 2 police constables. At the end of their evidence the court record reveals that the appellant changed his plea to one of guilty; thereafter the record reads:

"Facts already outlined.

Someone else stole the items. Accused's finger print evidence Ex. "1".

Says he did not steal the cigarettes or cash but admits going in and stealing some food.

Accused: Facts admitted.

Court: Convicted as charged."

With respect to the learned trial magistrate in the face of the Accused's recorded denial of stealing both the cigarettes and cash the guilty plea ought not to have been accepted without an appropriate amendment of the charge to one of stealing an unquantified amount of food.

Indeed having examined the evidence led by the prosecution, learned State Counsel concedes (very properly in my view) that she it is unable to support the appellant's conviction.

In particular counsel concedes that other than the presence of the appellant in the Snack Bar there is no evidence that the appellant had broken into the premises, nor is there evidence that he stole the cigarettes and money. Needless to say the evidence of both police constables is to the effect that prior to seeing the appellant in the Snack Bar they both already knew that the Snack Bar had been broken into.

Furthermore having regards to the fact that the appellant was apprehended from within the Snack Bar if he was in possession of $400 worth of cigarettes then I suggest it would have been obvious to even the most inexperienced of police constables. This was not a case of recent possession nor was there any evidence of a possession of stolen goods sufficient to raise the evidential presumption implicit in that doctrine.

Then learned State Counsel in an effort to support the appellant's conviction suggested various "possibilities" such as that the appellant could have been the actual culprit who broke and stole the items undetected and then was apprehended when he returned to the Snack Bar a second time.

With respect that was never suggested by the prosecution and is pure speculation. It has been said: "You cannot put a multitude of suspicions together and call it proof." In the face of the appellant's recorded denials his conviction cannot stand.

Accordingly the conviction and sentence is quashed. Furthermore and in order to exclude any prejudice that may have been occasioned by the very late hearing of this appeal (for which the appellant bears no blame) I order that the appellant's cumulative sentence be reduced by the unexpired portion of his sentence at the time when his cumulative sentence was imposed in July 1989 i.e. his earliest date of release is to be brought forward by 6 months.

(D.V. Fatiaki)
JUDGE

At Suva,
1st February, 1990.

HAA0053O.89S