Wesley v Police [1971] WSLawRp 1; [1970-1979] WSLR 29 (7 July 1971)

[1970-1979] WSLR 29

SUPREME COURT OF WESTERN SAMOA

WESLEY (SAM)

–v-

POLICE

SUPREME COURT, APIA
7 June, 7 July 1971
SPRING CJ

CRIMINAL LAW (Appeal) – Hearing and determination – Function of appellate court where sole question is the proper inference to be drawn from the facts – Court may conclude on evaluation of the whole of the evidence that the inference drawn by the Magistrate was not warranted – Onus on Appellant to satisfy Court that the Magistrate’s decision was wrong: Benmax v Austin Motor Co Ltd [1955] 1 AER 326, Gillard v Cleaver Motors Limited [1953] NZLR 885, Teper v R [1952] AC 480, 489 considered and applied.

(Evidence) – Identification (Justice dependent on independent Identification) – Prior description of person to be identified influencing witness: R v Dickman (1910) 26 TLR 640 referred to.

EVIDENCE (Witnesses) – Credibility – Trial judge should not assess credibility entirely on demeanour and manner of giving evidence: Uganda v Khimchand Kalidas Shah & Ors [1966] EA 30, 31.

APPEAL against conviction of theft.

Conviction quashed.

Loe for appellant
Slade for respondent

Cur adv vult

It is proper, in my view, when assessing the respective credibility of witnesses, that one should be careful not to assess credibility by their demeanour and the way they gave their evidence, and by that alone. The Court of Appeal of East Africa in Uganda v Khimchand Kalidas Shah & Ors [1966] EA 10 at page 31 said:-

Of course, ... a court should never accept or reject the testimony of any witness or indeed any piece of evidence until it has heard and evaluated all the evidence in the case. At the conclusion of a case, the court weighs all the evidence and decides what to accept and what to reject.

It is true that in a criminal trial where circumstantial evidence plays a part it is permissible to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence. However, as Lord Normand said in Teper v R [1952] AC 480 at page 489:-

It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

Considering the whole of the evidence in this case, evaluating the same and giving the best consideration thereto, and having regard to the lack of adequate police investigation when the complaint was first made, I am forced to the view that one is left in a state of reasonable doubt as to the guilt of the accused.

Admittedly, there is strong suspicion attaching to the accused, but suspicion, however grave, is never proof of an accused person’s guilt. It is with reluctance that I differ from the decision given by the learned Magistrate, but I believe I had a clearer analysis of the evidence presented to me than was placed before him. Accordingly, I allow the appeal and quash the conviction.