Chand v The State [1990] FJHC 56; Haa0040j.90s (25 July 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 40 OF 1990

Between:

JAGDISH CHAND
s/o Ram Chandar
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was convicted for an offence of House Breaking, Entering and Larceny on the 10th of January 1990 and sentenced to 2 years imprisonment.

He had pleaded not guilty and had given sworn evidence in his defence. The prosecution for its part called 4 witnesses in the trial and produced the appellant's caution interview record (Ex.2) and charge statement (Ex.3). The "stolen" radio cassette was also identified and produced as Exhibit 1.

The trial as clearly shown by the record was a short one with none of the prosecution's witnesses being cross-examined. The trial magistrate's judgment was similarly very brief comprising of 3 sentences as follows:

"This is one of the most clear-cut cases I have ever come across.

Accused is guilty beyond any reasonable doubt. Accused is found guilty and convicted as charged."

With respect to the trial magistrate his judgment if it can be excused as such failed miserably to comply with the terms of Section 155(1) of the Criminal Procedure Code which provides:

"Every judgment ...... shall contain the point or points for determination, the decision thereon and the reasons for the decision ......."

(my underlining)

There were no findings of any kind made nor were any reasons proferred for disbelieving the accused's sworn evidence or for preferring the prosecution's witnesses.

Thompson, J. in quashing the conviction in Mano Datt Sharma v. R. [1969] 15 FLR 136 in which the trial magistrate's judgment was described as "extremely short" had this to say which is worth repeating in full:

"The Magistrate Courts are called upon to deal with large numbers of cases and to do so expeditiously. This undoubtedly militates against the writing of lengthy judgments. Nevertheless there is a degree of brevity beyond which a judgment ceases to comply with Section 154(1) {now Section 155(1)} and ceases to show that the Magistrate has applied his mind properly to the defence raised."

and later his lordship says:

"I have considered whether, as the presiding magistrate is professionally qualified and experienced in the duties of a magistrate, it can properly be inferred from the findings which he made in respect of the prosecution case that he did take into consideration the evidence adduced by the defence. There may be cases in which such an inference can properly be drawn; but in my view this is not such a case. It is not simply a matter of implicitly rejecting evidence of an apparently far-fetched story told by the accused."

In this case under appeal the prosecution's case was that the complainant's home was broken into in her absence and her radio cassette stolen on the 17th of September, 1989.

She reported the theft of her radio cassette to the police. Then, approximately 3 weeks later on the 6th of October 1989 the complainant's room-mate saw the missing radio cassette in the accused's possession. The cassette was given to the landlord who immediately returned it to the complainant's room-mate.

The accused on the other hand denied stealing the radio cassette and under cross-examination he claimed that he "found" it in his house and had kept it until it was seen by the complainant's room-mate and that was when he gave it to his landlord.

Learned State Counsel while not seeking to support the "form" of the learned trial magistrate's judgment nevertheless sought to justify the appellant's conviction on the ground that there was sufficient evidence before the trial magistrate to justify his conclusion that:

"....... the accused is guilty beyond any reasonable doubt."

In particular, counsel argued that the prosecution's evidence established that the complainant's radio cassette was stolen and 3 weeks later not only was the appellant found in possession of it and gave an unacceptable explanation for his possession of it but additionally the appellant actually confessed to the police that he had stolen the radio in the course of his interview.

Furthermore counsel sought to draw inferences adverse to the appellant from his admission in his police interview to having taken the radio cassette to Nausori for a week and then subsequently giving it to his landlord. The suggestion being that the appellant had tried to dispose of the radio (in Nausori) and when that failed he had given it to his landlord in lieu of or as security for his rent.

However such suggestions are not supported by any evidence or by the landlord (who was not called) and is mere speculation. It also ignores the undisputed fact that the complainant and the accused had a common landlord and occupied separate rooms in the same house at Deo Dutt Estate.

In those circumstances whilst the appellant's possession of complainant's radio cassette is "suspicious" the fact that he retained it in his possession for 3 weeks and took it and brought it back from Nausori is consistent in my view with an absence of any dishonest intent on the appellant's part and lends powerful if not overwhelming support for his sworn denial.

How else can one reasonably explain the appellant's retention of the article for 3 weeks? and if he had indeed stolen it as alleged, why would he then keep it in his room within "easy-detection" so to speak, of the complainant. Needless to say the appellant is not charged with Larceny by Finding.

As for the evidence of the unchallenged confessions of the appellant that he stole the radio cassette, the magistrate's record is silent as to whether or not the appellant was questioned or advised if he had any objections to them nor do they appear to have been put to him in cross-examination.

Furthermore having seen and heard the appellant (as translated) in this appeal and being aware that he was "taken" to the police station by the complainant's room-mate and the fact that he has only received primary school educated to Class 7, I have grave misgivings about the appellant's alleged confessional statements which remain uncorroborated by any truly independent evidence of an intent to permanently deprive.

The evidence in this case deserved a more critical examination than that provided by the trial magistrate's 3 sentences and the conviction of the appellant must be considered unsafe and unsatisfactory.

What then should the court do next? I have considered whether it would be appropriate to order a retrial in this case but mindful of the fact that the appellant has already served 6 months in prison (which is the equivalent of serving a sentence of 9 months imprisonment) I consider it would be unfair to do so.

The appeal is allowed the conviction is quashed and the sentence set aside.

(D.V. Fatiaki)
JUDGE

At Suva,
25th July, 1990.

HAA0040J.90S