CRIMINAL APPEAL NO. 39 OF 1996 BETWEEN:
Appellppellant
AND:
STATE
Respondentspan>
The Appellant in person
Mr. W.W. Clarkethe State
JUDGMENT
The appellant was on 8 March 1996 convicted and sentenced to imprisonfor 12 months by the Magistagistrate's Court at Suva for the
offence of Burglary contrary to s.299(a) and larceny contrary to s.270 of the Penal Code.
He appeals against conviction and sentence which he says is harsh and excessive.
Before the hearing commenced the Appt handed in to Court his written grounds and submissions inns incorporating his earlier grounds
filed in Court.
The appellant's submisis, that as far as the sentence is concerned it is "too heavy". On convictnviction, he submits, inter alia, that he should not have been charged at all because he said that "PW2 had based his allegation on presumption and therefore it was not necessary for the accused to ask questions..... He PW2
stated, he saw the accused lying on bed and the bag was lying near him." (as per appellant's written submission page 1, 2nd paragraph). From the record it is revealed that his wife who also testified on
his behalf said in cross-examination that "I do not remember the date. Nor the day. Bag was brought during night time. It was around 1 a.m. or 2 a.m. Two Fijian boys bought
the bag. I did not know them. .... I did not tell the Police that two Fijian boys brought the bag ..." It is pertinent to note that the appellant did not cross-examine the prosecution witnesses at all on the version given by his wife
in Court.
The State says that there is little merit in the appeal. Mr. e submits that the learned Magistrate had the opportunity oity of seeing
and hearing the witnesses and observing their demeanour in the witness box. He says that after listening to their evidence about
how the bag came to be in the appellant's house and which was found beside his bed where he was asleep, when the Police came to arrest
him with a search warrant and arrested him, the learned Magistrate gave due weight to all the evidence before him. These are matters
of fact and after analyzing all the evidence he held that the prosecution had proved its case beyond all reasonable doubt.
On sentence the learned counsel for the State submits it is neither harsh nor excessive bearing in mind that thet the crime is on
the increase.
The learned Magistrate has carefully analyze evidence before him and he came to certain findings of faof fact. The onus is upon the
prosecution to prove its case. The learned Magistrate found that in the interview there was an admission that the appellant broke
into the house of the complainant; neither the Appellant nor his wife told the police how they or either of them came by the bag
in question. He found that there is variance between the evidence of the appellant and his wife.
On a finding that an accused person was in possession of property recentllen, in the absence of any any explanation by the accused
to account for his possession, a presumption of fact arises that he was either the thief or a receiver (R v HASSAN s/o Mohammed 1948 15 EACA 121).
In these circumstances the approach adopted by thistrate, the Appellate Court would be loathe to interfere were with his findings
of fact. In this regard I refer to the judgment of the Fiji Court of Appeal in SHINODRA f/n Enkanna and STATE (Criminal App. No. 7/88) where it is stated:
"... we ought to draw attention to an important point of practice concerning the exhe exercise by the High Court of its appellate
jurisdiction. An appellate Court is primarily concerned to satisfy itself that the conclusion reached by the trial Court can reasonably
be supported on the evidence adduced and upon the applicable law."
And further in a case which depends edibility of witnesses it is stated in SHINODRA (sup (supra):
"Where a case depends essentiallythe present case does, on the credibility of witnesses and and findings of fact connected therewith,
an appellate Court ought to be guided by the impression made on the Magistrate who saw and heard the witnesses and not by its own
evaluation of the printed evidence which can be misleading."
Before the appellant can succeed he has to show that there was no evidence on which rial Magistrate could reachreach the conclusion
which he did reach if he properly directed himself (KAMCHAN SINGH v THE POLICE (1953) 4 F.L.R. 69); and as was said by WIDGERY L.J. in R v COOPER (1968) 53 Cr. App. R. 82 at pp 85-86 the circumstances in which the Court will interfere with the findings are as follows:
"However, now our poare somewhat different, and we are indeed charged to allow llow an appeal against conviction if we think
that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.
That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the
matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been
done. This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general
feel of the case as the Court experiences it".
Here thened Magistrate was led to the conclusion for the reason he has given after analyzing the evhe evidence that the appellant
committed the offence with which he is charged and I am also of the view that any other finding would have been perverse.
Now, as for sentenefore this Court can interfere with this, or indeed any other sentence, it must be satisfieisfied that the sentence
is wrong in principle or that it is manifestly excessive.
I agree with Mr. Clarke that the sentence is not wrong in principle. This was a serious ce particularly when the hohe house that was
broken into is "occupied" (as opposed to "unoccupied". It has been held in England that for such burglary on a plea of guilty a sentence of three years is apt (REGINA v EDWARDS, REGINA v BRANDY, The Times, 1 July 1996 p. 44).
I reject the appellant's grounds of appeal altogether and uphold the suions made by the learned Sted State counsel.
In the outcome upon a careful consideration of the appellant's submissions, the Respondenrguments and upon reading ting the record
of the case before the Magistrate's Court I find that the appeal is devoid of any merit both as to conviction and sentence.
Having regard to the authorities I find that the sentence was not a day too long. It was neitherg in principle nor one whic which
is manifestly excessive. The Magistrate has actually erred on the side of leniency.
For the above re, this appeal against conviction and sentence must therefore be dismissed.
D. Pathik
JUDGan>
At Suva
6th August, 1996
Haa0039j.96s
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