Singh v Regina [1979] FJSC 59; Criminal Appeal 69 of 1979 (27 September 1979)

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

Criminal Appeal No. 69 of 1979

BETWEEN

ASHOK KUMAR SINGH s/o Mangal Singh
(Appellant)

AND

REGINA
(Respondent)

Mr. M. Tappoo for Sahu Khan, Counsel for the Appellant
Mr. D. Williams, Counsel for the Respondent

JUDGMENT

The appellant was charged with the offence of receiving contrary to section 347(1)(a) of the Penal Code in that on 7.2.79 he received two bags of onions valued at $16.80 knowing the same to have been stolen. He pleaded not guilty but after hearing evidence including the evidence of the appellant the magistrate convicted him of the offence charged and sentenced him to 9 months imprisonment.

He now appeals against his conviction and sentence and in arguing his case very ably and at some length his counsel cited no less than 33 cases and several text books. Many of the cases were of very little assistance since they were primarily concerned with the contents of summing up to a jury, where of course extra special care must be taken to ensure that a jury knows exactly what matter it must consider, and is not left in any doubt as to the elements of the offence, the onus of proof and the way evidence should be evaluated.

I hope I will not be guilty of oversimplifying if I set out more briefly just what I think the appeal entails.

On the evidence before the court, including the evidence of the thief who admitted stealing the onions and taking them to the appellant in his shop to sell for him there is really no room for doubt that the prosecution proved the receipt by the appellant of stolen goods as stated in the charge. The only issue really left for the magistrate, and this Court, to decide is whether at the time the appellant knew that they were stolen goods. I use the words "at the time" advisedly, because the circumstances of this case, it must be at the time of receiving the two bags of onions that the necessary element of mens rea is relevant. This is not a case where subsequent relisation that the goods were stolen, and retention nevertheless, could constitute the offence.

I note also here that whereas in the United Kingdom and many other countries (from some of which defence counsel has cited cases) the element of mens rea relevant to the offence of receiving is "knowing or having reason to believe the same to be stolen", in Fiji it is simply "knowing the same to be stolen". So that in Fiji it is not sufficient for the prosecution to prove that there were grounds for the accused to believe that the goods had been stolen; the court must be satisfied that the accused actually knew the goods were stolen. Direct proof of knowledge is unlikely as was pointed out by the magistrate, but clearly in certain circumstances the court may draw the necessary inference that the accused must have known the goods to be stolen.

In this case when the police went to the appellant's shop 3-4 days after the theft, with a search warrant looking for the onions the appellant first categorically denied having any onions at all. The police searched and found the two bags of onions, the contents of one bag having been partly sold. The appellant then said he had bought the onions from one Keolapathi, Suva. When asked to produce dockets the appellant took the police officer aside because he didn't want anyone else to hear what he said, and then told the police officer that he had bought the onions from a Fijian man.

The appellant in his evidence denied telling these different stories to the police, but there is no doubt that on the evidence so far there are grounds for the magistrate, accepting the police evidence as he was entitled to do, to infer guilty knowledge on the part of the appellant. It is true of course that the appellant might have panicked when the police came with the search warrant, and, realising at that stage that the onions might have been stolen, tried to lie his way out of trouble, although if that were the case why not say so to the Court.

Defence counsel, I think, conceded that if the evidence had stopped there the magistrate's finding might have been difficult to fault.

But that was not all the evidence. There was the evidence of the accomplice, the thief, to consider on the question of guilty knowledge, and the magistrate does not seem to have considered this aspect. A magistrate does not have to accept or reject the whole of an accomplice's evidence, he may accept part and reject part, but he cannot ignore it, particularly where it might be favourable to the accused. And apart from the evidence of the appellant himself, the evidence of the accomplice in this case is the only direct evidence of the actual receipt of the goods by the appellant, and the circumstances which could be very relevant to the issue of the appellant's state of mind at the time.

Unfortunately the evidence of the accomplice is a little confusing, partly at least because of the sort of shorthand used by the magistrate in recording his evidence. The accomplice seems to have contradicted himself in parts and there doesn't seem to have been any attempt made to clear up the matter of the contradictions.

However he said he didn't know the appellant before, but he took the onions to the appellant's shop at about 7 p.m. when the shop was shut. The appellant says it was about 7.30 p.m. as he was shutting up shop, the front being closed but the back being open.

The accomplice says he asked the appellant to sell the onions for him and if and when he did so let him have $5 a bag for them, as he wanted the money for his father's ceremony. The appellant more or less agrees with this story except that he says the accomplice wanted $6 a bag - or $5.50 (he wasn't very clear on this). No doubt the appellant would not want it to appear that he was buying the onions too cheaply, but in any case it can't be said that there was anything necessarily suspicious about the price considering the current prices for onions. The appellant said that he often helped out Fijians by selling produce for them in his shop and there was nothing unusual about the accomplice coming to his shop at about 7 p.m. That could well be true and in the absence of any contradictory evidence should be accepted in his favour.

The accomplice not only denied telling the appellant that the onions were stolen but said that he had told the appellant that he had bought the onions from Wali Mohammed's shop. Admittedly the accomplice later denied this, and earlier said that the appellant had not asked him where he had got the onions and he had not told him. He had never had dealings with the appellant before, there had been no receipt for the onions.

Clearly the evidence of the accomplice was most unsatisfactory, but put at its most unfavourable to the appellant, it does not suggest that the appellant must necessarily have realised he was receiving goods that had been stolen. And if the accomplice had said he had bought the onions from Wali Mohammed there was no reason for the appellant to suspect anything.

There was very little significant conflict between the evidence of the accomplice and the appellant's evidence. Their stories agreed to a large degree. On the basis of the accomplice's evidence alone there would clearly have been insufficient or no evidence to convict the appellant. On the basis of the appellant's lies without the accomplice's evidence there was evidence on which the magistrate could convict. But taking into account the accomplice's evidence and the appellant's lies, where does that leave the case against the appellant? There must be an area of conflicting inferences.

Is the only inference to be drawn from the lies that the appellant knew from the beginning that the onions were stolen? Could they not, for instance, lead to an inference that the appellant had rather shut his eyes to the possibility that the onions were stolen until the police came with the search warrant, when the suspicion, or even the probability or certainty that they were stolen was forced upon him so that he foolishly tried to lie his way out of trouble. I do not have to consider all the inferences, nor shall I speculate on what necessary inference the magistrate must have drawn had he fully evaluated the evidence, including the evidence of the accomplice as it had a bearing on the appellant's guilty knowledge. Sufficient to say that there is a reasonable doubt that the prosecution proved that the appellant knew the onions to have been stolen and I therefore set aside the conviction of the appellant and the sentence passed on him.

Sgd. (G.O.L. Dyke)
JUDGE

LAUTOKA
27th September, 1979