Derenalagi v Reginam [1970] FJLawRp 24; [1970] 16 FLR 131 (6 November 1970)

[1970] 16 FLR 131

E SUPR SUPREME COURT OF FIJI
Appellate Jurisdiction
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ILAINALAGI<
&#1r>AND:

REGINAM

Sharma for the appellapellant.
J. R>J. R. Reddy for the respondent
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of Judgment: 6th 6th November

Penal Code (Cap.ss. 291 (1), 294 (i), (i), 306 (a) (i).

Cal law - larcenarceny rge proved in respect of only some of the articles specifiecified in Particulars of Offence - conviction in respect of those articles -&#1i>i> (Cap. 11) ss.(1), 294 (i), (i), 306 (a) (i).

A conviction of thefnotannot be sustained where the convicting magistrate in his judgment impliedly accepted thsible truth of the accused's statement that he intended to d to return the articles.

Per c: Where, one, on a charge of larceny, the prosecution proves the theft of some, but not all, of the articles specified in the Particulars of Offence, it is to the court to convict the accused of larceny of the partiparticular articles proved to have been stolen by him.

Appealnst a conviction tion of larceny in the Magistrate's Court.

This is an appeal against conviction entered on the 2ndt by the First Class Magistrate's Court sitting at Nadi in Criminal Case No. 265/70. The aphe appellant was charged as follows:
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"FIRST COUNT

Statementement of cefence

LY BY SERVANT: Cont Contrary to Section 306(a)(i) of the Penal Code, Cap. 11.
Pulticularsulars of Offence

I
ILAI DERENALAGI,eeetween 15th day of November, 1969 and 10th day of March, at Namaka, Nadi in the Western Division being the servant of Qantas Airways Limited Namaka maka stole one meat slicing machine valued220.00, two Hi - Ball glassglasses, valued at 70 cents, 1 soup bowl valued at 20 cents, one soup spoon valued at 35 cents and two hand towels valued at 50 cents to the total value of $221.75 cents, the property of Qantas Airways Limited.

SECONDECOND COUNT

Statement of Offence

LARCEontrary tory to Sectio(1) of the Penal Code, Ca>, Cap. 11.

rticulars of Offe Offence

DERENALRENALAGI, betweeetween l5th day of November, 1969 and 10th day of March, 1970, at Na Nadi in the Western Division, stole 1 eating fork valued at 35 cents and casserole dish vash valued at 40 cents together of the value of 75 cents, the property of Air New Zealand Limited, Namaka.”

He pleaded not guto boto both counts. He denied any knowledge about the loss of the slicing machine mentioned; in count one. As regards the other items his contention throughoutthat he intended to return them.

The learned tned trial Magistrate acquitted the accused on the 1st count and convicted him on the second count and fined him $20.00. His reasons appear in his judgment the whole of which reads as follows:-

“#8220#8220;Judgment First Count

.

<2nd th P.W. say the the accused took a red machine from trom the store to the door of the building and P.W. 2 says he put it in his

While it is obvfrom from examination of the machine that it was once once “Qantas” red. P. W.1 makes no mention of this.

I am satisfied that the the machine is that of Qantas Airways but I am not satisfied beyond reasonable doubt that the accused stole it. The evidence before me is such that it would be most unsafe to convict.

I tisfied that the the accused stole the remainder of the items listed in Count No. 1 but as the Prosecution must prove all the ets including the items alleged to have been stolen and they have failed to prove part of thof their allegation the whole allegation fails. The charge is dismissed and the accused acquitted.

Second Count

ccused is chargcharged with larceny contrary to section 294 (1) P.C.

It is agreed that tcuseccused took these but ys and he told the police this that he meant to r to return them.

As an employmployee of Qantas he knew that he was not ed to take any item without permission and he did not seek seek permission. Although he says he meant to return them I feel that thisd be sometime in the future.

I hold the chargeharge proved and the accused guilty of the offence as charged and convict him accordingly.”

rounds of this appeal aeal are as follows:-

(1) Ther no evidencidence whatto disprove in any way the the appellant's statement to the effect that he had intended to return the articles the subject matter of the e and consequently the learned trial magistrate erred in hoin holding that the charge was proved beyond all reasonable doubt.

(2) That the learned trial magistrate's decision is unreasonable and cannot be supported having regard to the evidence.

The Crown concedes thav in view of the text of the trial magistrate's judgment the conviction cannot be sustained. Indeed the learned Counsel appearing for the Crown has invited this court to express its observation on the reason which led the trial Magistrate to acquit the accused on the first count. Such an exercise in my view would serve a useful purpose although the Crown has not appealed against the acquittal.

It is obvioat the reasoreason for the acquittal on the first count is ill - founded in law. If the learned trial Magistrate was satisfied beyond all reasonable doubt that the accused stole some of the ars alleged to have been stol stolen and not the others, then it was open to him to convict the accused in respect of those articles which the prosecution had proved to have been stolen by him.

However the acquittal does not appear to have occasioned any miscarriage of justice as the learned trial magistrate does not appear to have rejected the accused's contention that he haended to return the articles in question. The learned trialtrial Magistrate has, it seems fallen into error of assuming that it was incumbent on the prosecution to prove theft of every article alleged to have been stolen and that in the absence of such proof the court could not convict at all, not even in respect of those articles theft of which have been established. This is not so.

As regards the secondt ount in respect of which the appellant was convicted, the Crown has, appropriately in my view, conceded this appeal. One of the essential ingredients of the offence of theft which the prosecution must establish is that the accused at the time of taking the article alleged to have been stolen intended to permanently deprive the owner of his property. It is implicit in the learned trial Magistrate's judgment that this ingredient had not been established to his satisfaction. Indeed he states that “although he (i.e. accused) says he meant to return them I feel that this would be sometime in the future”. What is relevant is the intention of the accused at the time of taking and this is clearly laid down in the definition of ‘theft’ in section 291 (1) of the Penal Code, Cap. 11, which reads as follows:-

“A personls wals who, without the consent of the owner, fraudulentlywithout a claim of right maht made in good faith, takes and carries away anything capable of being stolen with intent, at the time of taking, permanently to depo deprive the owner thereof:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently convert same to his own use or the use of any person other than than the owner.”

An intenat the time of e of taking to return the same objects in future is inconsistent with an intention to permanently deprive the owner of his property. Had the learrial Magistrate found in this case that the accused, at thet the time of taking intended to permanently deprive the owner of the property but subsequently, i.e. after the fraudulent taking, decided to return the stolen goods at some future date, a conviction would have been well - founded.

Consequently I allow apis appeal, set aside the conviction and order that the fine it paid, be returned to the appellant.

Appeal allowed.&#br>

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