Lal v Regina [1977] FJSC 147; Crim. Appeal 88 of 1977 (21 October 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No. 88 of 1977

BETWEEN

SURUJ LAL s/o Mahadeo
(Appellant)

AND

REGINA
(Respondent)

Mr.S.R. Shankar, Counsel for the Appellant
Mr. Ikbal Khan, Counsel for the Respondent

JUDGMENT

The appellant on 8/7/77 was convicted by a magistrate for receiving a horse saddle between 3rd and 12th day of September, 1976 knowing the same to have been stolen.

The complainant (P.W.1), Paidanna s/o Chinaiya is a farmer. His evidence was not challenged by defence counsel and the magistrate accepted it. He says that the saddle cost him $40 and was in a new condition although he had it for 10 years and he kept it in his garage. He went away for a while in September, 1976 and on his return the saddle was missing. He notified the police who recovered it and he identified it on 16/9/76. There must be some discrepancy in this date because the police did not recover it until 28.9.76 (post P.W.5).

P.W.2, a carrier, said that in September 1976 he was hired to take some men to Qalau to a spot 20 chains from the house of the complainant whom he knows. In the short time that P.W.2 took to return his motor vehicle round they fetched a saddle which was transported, to the appellant's house and handed to him.

P.W.5, the investigating police officer went to appellant's house on 28/9/76 at 12.15 A.M. and wake him. The appellant denied that he had a saddle of any kind in his house and denied having received a saddle from a person called Possy. When told the place would be searched the appellant asked the police to wait until day time.

He was asked about sack and its contents which were found in his house. The appellant denied knowing how the bag had got there and denied knowledge if its contents. It contained a saddle which proved to be that of the complainant.

The appellant denied being aware of the saddle's presence or of its owner. He was arrested having been told that P.W.5 suspected it was stolen. Thereupon the appellant said he had purchased the saddle about 3 weeks before from Possy for $15.00. He said he did know it was stolen. He stated that he had known Possy for 2 years.

On the same day, 28.9.76, he was charged and cautioned by P.W.6 and reply to the charge he stated that he had bought it from a man whom he did not know by name but whom he had met in the market. He said the man did not have the saddle with him but wanted $40.00 for it. The appellant offered $15.00 and later that day this man delivered the saddle to the appellant's home and the appellant gave him $15.00.

No evidence was tendered by the defence.

The original appeal lacked any particulars and I rejected it in that form allowing extra time for filing an amended petition.

The first ground of appeal alleges that the magistrate based his findings of guilt on lies told by the appellant.

Ground 2 alleges that there was no evidence of theft.

Ground 3 alleges that the magistrate did not direct himself that onus was on the prosecution to show that the appellant knew the saddle was stolen and that the magistrate did not direct himself that the standard of proof required was to be satisfied beyond reasonable doubt of the appellant's guilt.

With regard to Ground 2, Mr. Shankar for the appellant argued that there was no evidence showing that no one had permission to move the saddle. He submitted that a member of the family could have given it away.

It is true that questions such as "Did you give it to anyone ?". "Had anyone your authority to remove it?" were not put to the complainant . However, he lost no time in reporting its disappearance to the police and had it been removed with his authority he would not have hurried to the police.

Proof of a theft is gleaned from the evidence as a whole in the absence of a witness who saw the removal of the article and who at the time was aware that a theft was occurring e.g. an eye witness to a snatching or "smash and grab" raid.

P.W.2, the carrier, says that he stopped 20 chains from the complainant's house and the saddle was loaded almost immediately indicating that it must have been concealed there for the purpose of collection. The only person(s) who would be likely to have concealed it is the thief who took it from the complainant's garage.

On the issue of theft the learned magistrate's judgment was brief in the extreme.

"Prosecution rely on the doctrine of recent possession. Accept P.W.1's evidence that saddle taken from his house (garage) during his absence from Suva early in September. Could only have been stolen."

Mr. Shankar for the appellant submitted that the saddle could have been removed by a member of the family or its disappearance could have been accounted for in some way other than by stealing. However, a perusal of the evidence to which I have already referred could leave no doubt but that the saddle had been stolen. If a member of the complaint's family had been involved he would have been an accomplice to the stealing. In taking the saddle away in a motor vehicle and selling it to the appellant the vendor of the saddle clearly demonstrated an intension permanently to deprive the owner thereof.

Had there been, on the evidence, any possibility of the saddle being removed in the circumstances not amounting to theft this appeal would succeed because the magistrate gave no reasons to show why he concluded it had been stolen. But on the prosecution evidence which the learned magistrate obviously accepted- and there was no other evidence for the magistrate to consider-a finding that the saddle had not been stolen would be contrary to commonsense.

The first ground of appeal alleges that the magistrate over emphaised the lies told by the appellant infinding him guilty.
Reference was made to R v. Broadhurst 1964, A.C. 441, where the Privy Council considered the effect of lies told in evidence by an accused. The Privy Council's views were re-iterated in R v. Dehar, 1969 N.Z.L.R, 763, in which the court considered statements made out of court and in court by an accused. They held that where lies told by an accused are relied upon for the purpose of obtaining a conviction the judge should direct the jury that :-

"(1) they must first consider whether they were satisfied beyond reasonable doubt that the appellant had deliberately lied.......................... and,

(2) if they had come to conclusion that this was satisfactory proved they could consider whether the fact of telling those lies was a fact which, in the circumstance of this case, pointed to guilt and when to the rest of the evidence could prove the substantive Crown case beyond reasonable doubt."

Mr. Shankar pointed out that persons lie for various reasons apart from the desire to conceal guilt. That argument has been constantly noted by courts of all degrees and it is necessary to draw it to a jury's attention during summing up, provided of course there is evidence pointing to reasons other than guilt which could, have prompted an accused to tell lies.

The judgment reveals that it was not only lies told by the appellant to the police which the magistrate considered but also his conduct when first approached by the police. Thus the appellant endeavoured to persuade the police to postpone searching his promises until later in the day. The magistrate would be entitled to take the view that the accused was aware that he had in his house the saddle about which the police questioned him and that if they found it he would experience difficulty in giving an innocent explanation for its presence when he had already denied having any saddle in his possession and denied receiving one from Possy. When shown the sack he denied knowing how it came to be in his house and what were its contents. When the sack was opened to reveal the saddle and when told he would have to go to the police station he then admitted he had purchased it from Possy. At the police station when charged he retracted his admission of having bought it from Possy and said he had purchased it from a man whose name he did not know.

Why so much prevarication and lies if the appellant acquired the saddle in innocent circumstance?

In R v. Chapman 1973, 2.W.L.R. 876 the Court of Appeal referred to lies told out of court at p.883 M/F saying :-

"Proof of a lie told out of Court is capable of being direct evidence admissible at the trial amounting to affirmative proof of the untruth of the defendant's denial of guilt. This in turn may tend to confirm evidence against him and to implicate him in the offence charged."

Why should the magistrate have considered whether the appellant's prevarication and lies were promoted by fear, or by being in a sleepy doze or bath? There is no evidence that the appellant ever said he was in such a state. The appellant did not give evidence at his trial and the magistrate could not put into the appellant's mouth evidence which the magistrate thought he would have tendered.

It was open for the magistrate to take the view that the lies told by the accused to the police and his conduct when they came to search his house pointed to a guilty mind. I would not have expected him to draw any other conclusion in the circumstance.

Regarding the third ground of appeal that the learned magistrate did not direct himself as to the burden of proof and standard of proof. It is not encumbent upon a professional magistrate to write a judgment in the style of a judge's summing up. Assessors are not aware of the law nor of the way in which to assess evidence according to the proper principles. Therefore it has to be obvious from summing up that they were properly instructed in such matters before they return any opinions It is not necessary for a magistrate to record his knowledge of the law and rules of evidence as I sated in VONIVATE DRAUNIMASI v R, Lautoka Cr.App. 25/77. Some professional magistrates invariably use phrases such as "the onus is on the prosecution"; "the burden is never on the accused"; "the standard of proof is satisfaction beyond reasonable doubt"; and so forth. They could almost be "rubber stamped" at the commencement of a judgment. It is certainly not a wrong approach because it remainds a magistrate of his duties. What matters is whether he has conformed with them and this will be demonstrated by his written judgment.

There is nothing in the learned magistrate's judgment to even suggest he did not follow the law and the rules of evidence. At no time does he intimate that any onus is cast upon the accused.

The magistrate's judgment contains a reference to the value of the saddle. He says it could have been purchased for $15.00 or $50.00 in the ordinary way. The appellant says there was no evidence as to the value of the saddle when it was received by the appellant.

In evidence the complainant said he paid $40.00 for it 10 years ago and that it is still in a new condition. Having regard to inflation and the drop in money values one may safely conclude that the $40.00 of 10 years ago would represent $80.00 or more at the present time. There was nothing wrong in the magistrate regarding the price of $15.00 as being unusually low and in taking this into account, as he did, as a factor pointing to the appellant's guilty knowledge.

The appeal against conviction fails. The accused was sentenced to 10 months imprisonment in 1970 for cattle stealing and the sentence of 12 months imprisonment imposed in this case is not excessive.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
21st October, 1977.

Messrs. G.P.Shankar & Co., for the Appellant
Director of Public Prosecutions for the Respondent
Date of Hearing: 7th day of October, 1977.