Viriki v Reginam [1978] FJSC 42; Criminal Appeal 035 of 1978 (31 July 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 35 of 1978

Between:

SOLOMONI VIRIKI

and

REGINAM

JUDGMENT

This is an appeal against the conviction of the appellant on the 6th April 1978 at Levuka Magistrates Court of shopbreaking entering and larceny contrary to section 333(a) of the Penal Code.

A consideration of the record reveals that the only evidence which incriminated the appellant, as distinct from raising suspicion, was that of a Fijian woman from Gau named Vilisi who claimed to have found in a matchbox in the appellant's clothing a folded cheque which had been stolen from the Gau Cooperative Store two months earlier when the store had been broken into.

The appellant from the very outset denied any knowledge of the shopbreaking and testified that he had never seen the cheque before and that it had never been in his possession, which necessitates subjecting the evidence of Vilisi to the closest scrutiny.

It appears to be common ground that in August 1977 a rugby team came from Gau to Suva accompanied by others including the appellant and Vilisi and that while in Suva the appellant stayed for a time at the house of Vilisi's cousin, Vilisi testified that the appellant left his clothes at her cousin's house for washing, and she claimed at first that she had gone to the bathroom specifically for the purpose of washing the clothes and that while she was handling them a matchbox fell from the appellant's trousers which she opened and which she found contained not only matches but the folded cheque. This immediately gives rise to the question of why she should have deliberately opened and inspected the contents of a commonplace matchbox - but she gave no explanation to account for this unusual behaviour. Under cross-examination her version of events changed significantly, as she alleged that her sole purpose in going to the bathroom had been to urinate and that while in the bathroom for that purpose she saw the matchbox with the cheque "by accident". Again, there was no explanation of why her attention should have been attracted to a common-place matchbox, or of how she could have "accidentally" seen a cheque concealed inside it. It was put to her by the appellant that he had land in Gau which was coveted by other villagers and that he had been obliged to order her farther off this land - in other words that she had a motive for lying - but she claimed to know nothing of such matters despite the fact that she and her parents came from the same village in Gau as the appellant.

It is inherently implausible that the perpetrator of shopbreaking and larceny would carry around in his possession a useless cheque in a matchbox containing matches for a period of two months, when the possession of same would link him to the offence, and in view of the unsatisfactory nature of the evidence relating to the purported discovery of the cheque I am of the opinion that it would not be safe to let this conviction stand.

The conviction is accordingly quashed and the sentence set aside.

Suva,
31st July 1978.

Clifford H. Grant
Chief Justice