Muttaiya v Reginam [1977] FJSC 105; Criminal Appeal 23 of 1976 (29 April 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 23 OF 1976

BETWEEN

1. MUTTAIYA
s/o Kottaiya

2. SAMINANDAN GOUNDAR
s/o Subramani Goundar
Appellants

AND

REGINAM
Respondent

JUDGMENT

The two appellants were convicted of the offence of larceny by a servant contrary to section 306(a) of the Penal Code by the Labasa Magistrates Court on the 21st day of July, 1976.

The first appellant was sentenced to two years' imprisonment and the second appellant to fifteen months' imprisonment.

The first appellant on the same day was also convicted of an additional offence of larceny by a servant and sentenced to one year's imprisonment consecutive to sentence on the first conviction.

Both appellants appealed against conviction and sentence.

I will deal first with the first appellant's appeal. Although there are three grounds of appeal as to conviction they are all appeals from finding of facts or failure by the trial Magistrate to properly evaluate the evidence.

It is not necessary to restate the facts which the record indicates the trial Magistrate fully considered in his judgment. I am entirely in agreement with the trial Magistrate's comment on the first count that "the weight of evidence against the first accused of larceny of the cigarette papers is overwhelming". There was in addition a confession by the first appellant admitting the offence.

As to the second offence the first appellant admitted in his confession that all the items listed in the particulars of the offence had been stolen by him.

The trial Magistrate in a "trial within a trial" was entirely satisfied that the confession was voluntary.

There was ample evidence on both counts to establish the offences beyond any reasonable doubt which the trial Magistrate properly considered and evaluated.

The appeal against conviction fails.

With regard to the appeal against sentence the trial Magistrate fully considered all matters urged in mitigation. He was of the view that the offence was a serious one and a deterrent sentence was necessary. With this view I am in agreement.

While the first appellant was treated as a first offender, since there was no prior conviction involving dishonesty, a sentence of two years' imprisonment for the offence is not unduly harsh or excessive. Counsel for the first appellant referred to the case of Finau Rolivolivoli v. Reginam Cr. App. No. 18 of 1976 where Grant C. J. quashed the sentences on six counts of larceny by a servant where a sentence of twelve months' imprisonment on each count was imposed the sentences to run consecutively - a total of six years' imprisonment. Grant C. J. substituted concurrent sentences of 18 months' imprisonment on each count. In that case the appellant was a youth and had pleaded guilty. Jai Nand Shankar v. Reginam Cr. App. No. 30 of 1976 was a similar case also involving consecutive sentences for 12 offences of larceny by a servant. Grant C. J. in that case stated:

"Each count should normally bear the penalty which it warrants and so as to ensure that the aggregate punishment is not excessive, the sentences should be ordered to run concurrently."

In the instant case the sentence for the second offence was ordered to run consecutively with the sentence for the first offence. Counsel for the Crown conceded that the sentence should run concurrently faith which view I agree.

While I would not normally interfere with the sentence of two years' imprisonment on the first count and entirely agree with the reasons given by the trial Magistrate for imposing an immediate custodial term there is one aspect which was not considered by the trial Magistrate which inclines me to the view that the interests of justice would be served if the sentence was reduced to 18 months' imprisonment.

The accused was first before the Court on 21st April 1975 but it was not until the 2nd July 1976 that his case was finally concluded. There were no less than 19 adjournments. There has also, regrettably, been undue delay in the hearing of this appeal which was first listed for hearing on the 1st October 1976 and finally heard on the 4th April 1977. I would agree with counsel for the first appellant that the delays in this case must have caused the appellant mental anguish for a period longer than is usual even taking into account delays caused by the congestion in the Magistrates Courts. Taking into account all factors I consider that 18 months' imprisonment on the first count would be adequate punishment for the offence which involved goods valued at $90.00.

I allow the appeal against sentence. The sentences are quashed and in substitution therefore the appellant is sentenced to 18 months' imprisonment on the first conviction and 12 months' imprisonment on the second the sentence on the second conviction to run concurrently.

I turn now to the second appellant's appeal. The appeal was allowed at the hearing and the conviction quashed and I advised that I would give written reasons for allowing the appeal.

The second appellant was jointly charged with the first appellant of larceny by a servant of five large packets of cigarettes papers valued at $90.00 the property of his employer Naugan Rana. He pleaded not guilty and gave evidence on oath.

The trial Magistrate in a very full considered judgment when considering the evidence against the second appellant stated "clearly there are serious gaps in the prosecution case."

The prosecution case established that the second appellant was employed as a delivery boy although he did on occasions serve customers. He was at the time 20 years of age. On the day of the alleged offence he with the first appellant, a man of 40 years of age who was clearly the senior employee, were in Rana's shop.

One Chote Lal (P.W.2) came into the shop and had a discussion with the first appellant. The first appellant instructed the second appellant to hand over to Chote Lal a Cold Power carton which was tied up and which evidence later established contained the stolen cigarette papers. It is clear from Chote Lal's evidence that the contents of the carton were not visible. On the first appellant's instructions Chote Lal delivered the carton to Isar Din's shop across the road. After first delivering it in error to a shop next door. Chote Lal's evidence makes it clear that he only had contact and discussions with the first appellant. He admitted he had no discussion with the second appellant at all.

The trial Magistrate in setting out his findings on the facts stated "The second accused picked this carton up and gave it to the first accused who handed it over to Chote Lal". However in considering the evidence against the second appellant the trial Magistrate said:

"In the event the only evidence against the second accused is the fact that it was he who handed over the carton containing the stolen cigarette papers to Chote Lal and that he was with the first accused later in the day, shortly after 5 p.m., when Jai Narayan handed over the sum of $40.00 to the first accused who, in turn, gave the second accused one half of this money - a sum of $20.00."

This was a clear misdirection by the trial Magistrate and a relevant one as this finding that the second appellant handed over the carton to Chote Lal was treated by the trial Magistrate as evidence of participation by the second appellant in the crime with the first appellant.

On its own there was nothing suspicious in the fact that the second appellant handled the carton. He was a junior delivery boy and acted on the instructions of his senior the first appellant. As Chote Lal himself stated in evidence "It was done quite openly. There was nothing suspicious".

The trial Magistrate however had to consider the payment of $20 to the second appellant by the first appellant later in the day at Isar Din's shop.

The only evidence the prosecution could produce regarding this payment of $20 was the statement after caution made by the second appellant to the police about two hours after the payment was made. The second appellant's statement from the evidence given by the prosecution witnesses indicates that the story he told was factual. At the trial he gave evidence on oath and told the same story as related in his statement except that for the first time he gave a reason for the payment to him of $20 - that it was repayment of money lent by him to the first appellant.

The trial Magistrate did not believe the second appellant's explanation about the repayment of the loan. He said in his judgment "Further, the second accused made no mention of the loan repayment in either of his statements to the police..." This overlooked two facts. First the second appellant was not obliged to say anything to the police and secondly it is obvious that the police did not ask him why the money had been paid to him. The trial Magistrate also speculated about the fact that the first appellant had earlier that day received $40 or $50 as an advance from his employer and could have repaid the loan earlier that day if he was anxious to repay the money.

The trial Magistrate did not believe the second appellant's story that he had not gone to Isar Din's shop with the first appellant and that his being there at the time Jai Narayan paid the first appellant $40 for the cigarette papers was entirely fortuitous.

In his first finding on the facts the Magistrate said "... the first accused went to Isar Din's shop.
The second accused was also there but standing in the doorway." Later in his judgment when referring to Gulab Chand's (P.W.10) evidence the Magistrate states "But that witness also says that the two accused came together ....." He goes on to state "There is no reason why that witness should lie."

Gulab Chand was closely related to Jai Narayan the man who paid the $40 to the first appellant. He was Isar Din's grandson and Jai Narayan was Isar Din's son. He said nothing about any payment by the first appellant to the second appellant although he did see Jai Narayan hand over $40 to the first appellant. He testified that the first appellant came into the shop alone. He saw the second appellant. He first said the second appellant stood in the door way but under cross-examination he said the second appellant stood outside the shop. He did not say he had seen the two men arrive together. The second appellant's story about the payment he received indicates that he went inside the shop, spoke to the first appellant and asked for a cigarette which he received. The first appellant then paid him $20. He told the same story on oath at the trial and this was not challenged by the prosecution. There appears to be no reason why the second appellant should freely admit to receiving payment of $20 vender suspicious circumstances but should lie about where the money was paid to him. On the evidence I am not satisfied beyond reasonable doubt that it was established that the first and second appellants went to Isar Din's shop together that afternoon.

Before convicting the second appellant and after considering all the evidence the trial Magistrate said:-

"I do not believe that the first accused would suddenly produce the sum of $20 when all he was asked to provide was a cigarette. I come to the inescapable conclusion that that payment was the second accused's one half share of the payment for the cigarette papers stolen by the two accused and sold to Jai Narayan of Isar Din's shop that afternoon. I am satisfied beyond reasonable doubt that the second accused knew full well what was in the carton and went with the first accused for the sole purpose of obtaining his share of the proceeds."

The only suspicious act by the second appellant connecting him with the offence was his receipt of $20 which was half the proceeds of the stolen goods.

The conclusion the trial Magistrate came to was an assumption based on proven facts an assumption he was entitled to make if the facts established beyond reasonable doubt that the second appellant was a principal offender. On the evidence I would not accept that the inescapable conclusion was as stated by the trial Magistrate. The mere payment of the $20 which was half the proceeds of the sale of the stolen cigarette papers could have been a share of the sale proceeds in which the second appellant could have been either a principal offender or an accessory after the fact an offence with which he was not charged. It could have been repayment of a loan as the second defendant claimed or even "hush money" paid by the first appellant on realising that the second appellant might suspect a crime had been committed.

I do not consider however that a Court can speculate in this manner and make assumptions which the evidence does not clearly justify. Did the admitted payment of $20 by the first appellant to the second appellant in the absence of any other suspicious circumstances clearly pointing to the involvement of the second appellant in the theft of the cigarette papers justify the conclusion the trial Magistrate reached? In my view it did not.

On consideration of all the evidence in my view the prosecution did not establish the guilt o£ the second appellant beyond all reasonable doubt and he must be given the benefit of such doubt.

I confirm that the appeal succeeded and the conviction of the second appellant has been quashed.

(SGT) R. G. Kermode
JUDGE