Painivalu v Reginam [1977] FJSC 30; Criminal Appeal 040 of 1977 (27 May 1977)

Fiji Islands - Painivalu v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 40 of 1977

:

TIMOCI PAINIVALU

AND:

REGINAM

This is an appeal against the conviction ofon of the appellant by Suva Magistrates Court on the 6th April 1977 of larcontrary to section 294(1) of the Penal Code.

The brief facts are that on the 3rd Sepd September 1976 the appellant entered a shop in which he purchased a recorded cassette which he placed in his bag. According to the salesman the appellant thereafter asked whether it could be changed for another recording - although the appellant was not questioned about this aspect of the matter, neither during interrogation by the police nor in cross-examination. The salesman testified that he went to look for another cassette at which time the appellant was near a counter and was inspecting cameras on a shelf. The salesman was unable to obtain another cassette and when he returned to the counter he found the appellant had departed but had left his diary on the counter. The salesman then observed that a camera was missing from the shelf, but there is no evidence as to when it had last been seen on the shelf. As the diary which the appellant had left on the counter bore his name it was handed to the police who traced the appellant and interviewed him on the 2nd of November, whereupon he freely admitted going to the shop on the day in question, purchasing a recorded cassette, and inadvertently leaving his diary on the counter. He denied having stolen a camera. The appellant gave evidence on oath at his trial to the same effect.

The trial Magistrate in his judgment quite properly stated that the prosecution case was based entirely on suspicion - but thereafter proceeded to draw an irresistible inference that the appellant had stolen the camera.

It is trite to say that "you cannot put a multitude of suspicions together and make proof out of it" (per Devlin J. in R. v. Attar (1956) The Times March 22); and it is fundamental that before a conviction can be grounded on circumstantial evidence that evidence must lead irresistibly to the conclusion that, and allow of no other reasonable hypothesis than that, the accused committed the offence.

As the Crown concedes, the evidence herein falls far short of the standard required, and the conviction is accordingly quashed and the sentence set aside.

Clifford H. Grant
Chief Justice

Suva,
27th May 1977.