Regina v Tuisawani [1986] FJSC 1; Criminal Case 078 of 1986 (20 October 1986)

Fiji Islands - Regina v Tuisawani - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

CRIMINAL JURISDICTION

Cal Case No. 78 of 1986

BETWEEN:

REGINA

AND:

JONE TUISAWANI

Mr. A.K. Shaor the Crown.

Accused in Person.

RULING

(Orally)

Cases referred to:

(1) R. v. Wynne [1786] EngR 74; 168 ER 308pan>

(2) R. v. West [1854] EngR 23; 169 ER 780.

(3) R v. Moore [1861] EngR 87; 169 ER 1278

(4) R. v. Pierce 6 Cox 117.

(5) R v. Deaves 11 Cox 227.

(6) R. v. Knight 12 Cox 102.

(7) R v White 23 Cox 190.

(8) Hibbert v. McKiernan (1948) 2 KS 142.

(9) R v. Thomas (1953) 37 Cr.App.R. 169.

The accused is charged with larceny of eical switches from Morris Hedstrom & Co., in Suva. The accused has submitted that therethere is no case for him to answer. Learned Crown Counsel, Mr. Sharma, has submitted to the contrary.

There is a very old saying by Hale which is to be found at paragraph 9 - 1 of Archbold's Crl Pleading - Evidence and Pand Practice 42 Ed. which reads, and I quote:

“And Hale in particular lays down (2 Hist. P. C. 290) two rulemost prudent and necessary sary to be observed in this respect: first, Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual (theft) be proved of such goods.”

It cannot be said that the ois a “person unknown” here, for evidence has been given by a representative of Morris HedstHedstrom & Co. that the goods were, at one stage at least, the property of that company. There is no evidence, however, that the goods were stolen from Morris Hedstrom. There is no evidence that the goods were taken without the consent of that company.

The first prosecution witness, the security officer, never testithat he ever asked the accused for a receipt, much less thas that the accused failed to produce a receipt. Furthermore, the second prosecution witness, the Manager of the Electrical Department, never testified as to any

deficiency in stock compared to the day's takings. The only evidence in the matter is that the accused was seen to behave in a suspicious manner. The security guard never saw him, for example, take the goods from a shelf and walk out of the store without paying therefor. In a statement to the police, the accused says what he found the electrical switches in a plastic bag in the milk bar adjoining the store. But that is not evidence of a larceny. In brief, there is no evidence of the corpus delicti.

Mr. Sharma submits in the alternative that on the accused's statement, there is some ece of a theft by finding. Tng. There is, in the alternative, no evidence as to ownership, however, as the prosecution witnesses have failed to establish that the goods were not purchased from Morris Hedstrom. There is no evidence that no one subsequently notified any loss to that store. The question arises as to in whom the property lies. If a charge is to be framed, therefore, in whom is the property of the goods to be alleged? All of the old (pre 1915) authorities that I have examined, in the case of theft by finding, allege ownership, for example, in the cases of R. v Wynne. ⁽¹⁾, R. v. West ⁽²⁾, R. v. Moore ⁽³⁾, R. v. Pierce ⁽⁴⁾, R. v. Deaves ⁽⁵⁾, R. v. Knight ⁽⁶⁾. Ownership was also alleged in the case of R. v. White ⁽⁷⁾ (1912), and also in the well - known case of Hibbert v. McKiernan ⁽⁸⁾ (1948) but in the later two cases a special ownership in the goods was alleged. In the (post 1915) case of R .v Thomas ⁽⁹⁾ (1953) however, no such special ownership was involved, yet ownership was pleaded.

All of those cases, as I have said, indicate that in such cases of theft by finding, the ownership of the goods was alleged. In our case, we have the special provisions of section 122 (c) (i) of the Criminal Procedure Code (based on the indictment Act of 1915, Rule 6), which remove the necessity of describing the ownership of any property except, of course, where any special ownership is alleged. Nonetheless the relevant precedents in the Second Schedule to the Criminal Procedure Code indicate otherwise. Further, in the present case the prosecution have embarked upon the case by alleging ownership by Morris Hedstrom & Company and I consider, under the circumstances therefore, that it would he unjust at this stage for it to change the allegation or make no allegation as to the ownership. Further again, if the ownership is now unknown, then how can it be said, on the evidence before me, that the accused believed that such ownership could be ascertained by taking reasonable steps? There is no evidence that there was, or was not a receipt in the bag: if the accused's version is to be accepted (and it seems that the prosecution are prepared to do so), how then can it be said that the accused would not have reasonably presumed, at that point in time, that the goods has been purchased, in which case the difficulties of establishing ownership are quite apparent.

I am quite satisfied that there is no evidence ofeny direct from Morris Hedstrom.

Further, on the facts before me, I do not see that it can be said that there is any evidence of larceny by finding. Under the circumstances, I find the accused not guilty of the charge as laid and acquit him accordingly.

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Delivered In Open Court this 20^th Day of Or, 1986.

Justice B.P. Cullinan