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Leung Foon v Republic [1974] NRSC 6; [1969-1982] NLR (D) 26 (22 November 1974)

[1969-1982] NLR (D) 26

IN THE SUPREME COURT OF NAURU

Criminal Appeal 14 & 15 of 1974

LEUNG FOON & CHIU SUK YEE

v

THE REPUBLIC OF NAURU

22^nd November 1974

Evidence - alleged confession by person other than witness – hearsay - inadmissible.

Procedure - witness not called by prosecution - accused represented by pleader - no duty on magistrate to suggest to defence pleader that witness be called.

Appeal against conviction for stealing window louvres. The appellants were a husband and wife. The prosecution called witnesses who stated that they saw the appellants removing the louvres. The 15-year-old son of the appellants made a statement to police officer in which he allegedly confessed to stealing the louvres and exonerated the appellants. The son was not called as a witness by the prosecution or the defence. The appellants were represented by a pleader. The magistrate refused to take the son's alleged confession into account and found both the appellants guilty.

Held: (1) The evidence of the son's alleged confession was hearsay.

(2) As the appellants were represented by a pleader, the magistrate had no duty to suggest to the defence that the son be called as a witness.

G.R. Clark for the appellants
J.H. Berriman for the respondent

Thompson CJ:

The two appellants are man and wife. They were convicted in the District Court of stealing a quantity of window louvres belonging to the Nauru Phosphate Corporation. The first appellant was sentenced to.3 months' imprisonment and the second appellant vas ordered to enter into a recognizance to be of good behaviour for one year. Both appellants have appealed against their conviction and the sentence passed and order made.

The prosecution case was that the appellants were seen going the first appellant's car to a block of quarters belonging to the Corporation and that the first appellant was seen to go into the block and come out carrying louvres and load them into his car while the second appellant kept watch near the car. They are alleged to have driven off in the car. The defence did not contest evidence adduced by the prosecution that a quantity of louvres was found to have been stolen from the block and that louvres similar to those stolen were found in the appellants' quarters few days later. Two Gilbertese men gave evidence of seeing the louvres being removed from the block. One of them identified both the appellants whom he knew.

The defence case was that the appellants were unaware of the presence of the louvres in their quarters; they were found in the son's room. The son made a confession to the police and was charged jointly with the appellants. He pleaded guilty and evidence of his confession was led. At the end of the prosecution evidence the Director of Public Prosecutions entered a nolle prosequi in respect f the son and he was discharged.

The learned magistrate in a careful judgment accepted the evidence of the two Gilbertese men and rejected that of the appellants. Having convicted them, when he was passing sentence he commented that they had sacrificed the good name and reputation of their son in order to save their own skins. He said that this was clearly revealed by the evidence.

The first ground of appeal presented by Mr. Clark for the appellants was that the learned magistrate had adopted an irregular procedure, namely taken into account matters of which no evidence was given in Court and that this resulted in their convictions being a miscarriage-of justice. He submitted that there was no evidence on the basis of which the appellants could have been found to have influenced their son to confess in their place; and that, if the learned magistrate took into account for the purpose of sentence matters of which he had obtained knowledge otherwise than from the evidence before him, he may have done so also in deciding upon their guilt. '

That submission ignores the fact that, once the learned magistrate had accepted the evidence of the two Gilbertese men and rejected that of the appellants, it was clear that the son's confession was false. Possibly the matter was put too strongly when it was said that the facts of the case clearly revealed that the appellants had sacrificed their son's good name and character. But that a 15-year old boy should have made a false confession without any prompting was unlikely and the conclusion drawn by the learned magistrate was the obvious one indicated by the facts which he had found.

The fact that he drew that conclusion is no ground for imputing that he took into account matters extraneous to the evidence. He did take into account, for the purpose of sentence, the son's confession of which evidence had been given; as the son was no longer one of those accused, he should not have done so. However, he stated in his judgment that he did not take it into account in considering the question of the appellants' guilt. The first ground of the appeal against conviction fails, therefore.

The next ground argued by Mr. Clark was that the learned magistrate should have taken the son's confession into account in deciding the question of the appellants' guilt. As already stated, he said in his judgment that he had not done so. As the confession was made to a police officer, not in the course of giving evidence to the Court, it was, so far as the case against the appellants was concerned, hearsay evidence. The fact that hearsay evidence is favourable to the defence does not render it admissible. (Sparkes v R. (1964) A.C. 964) If the appellants, who were represented by a pleader in the District Court, had wished to have their son's confession taken into account, they could have called him to give evidence on their behalf. Mr. Clark has suggested that he should have been called as a witness by the prosecution but there was no obligation on the prosecution to call a witness in whose credibility it presumably had no confidence. Mr. Clark has also suggested that there was some duty on the magistrate to suggest to the defence pleader that the son be called as a witness. That suggestion is quite unacceptable. A pleader should know his case well enough to be able to decide what witnesses he needs to call in support of it. The second ground of appeal against conviction, therefore, also fails.

The next ground argued by Mr. Clark was that the conviction was unsafe because the evidence raised doubts on four matters which were relevant to the question of the appellants' guilt. He suggested that, although the significance of any one of those matters was small, the cumulative effect of them was to raise a reasonable doubt whether the evidence did establish that the appellants stole the louvres. I do not propose to recite the details of those matters or of the evidence. I have, however, examined carefully the transcript of the evidence and the learned magistrate's judgment. He has dealt with them in that judgment and it is quite clear that he was satisfied beyond all reasonable doubt by the evidence that the facts alleged by the prosecution were established; it was clear also that the evidence, if believed, as it was, was quite sufficient for him to be satisfied of those facts beyond all reasonable doubt.

Mr. Clark has, with the leave of this Court and the consent of the respondent, filed in these proceedings a copy of a series of reports on the first appellant made by various senior officers of the Nauru Phosphate Corporation, by which he has been employed for 15 years. The reports are highly commendatory. Mr. Clark has suggested that this evidence shows that it would have been out of character for the first appellant to steal the louvres and that if the evidence had been available in the District Court, it might have tipped the scales in favour of the first appellant. I am unable to agree with that submission. The evidence of the two Gilbertese men, as cogent and the prosecution case against the appellant was strong. The appeals against the conviction of the two appellants fail.

On the question of sentence Mr. Berriman, representing the respondent has accepted that, if the reports on the first appellant had been available to the District Court, they might have been regarded as grounds for mitigating the sentence. Mr. Clarke has drawn attention to the fact that sentences of imprisonment are rarely imposed on first offenders of previous good character for stealing property of small value. It seems that the learned magistrate refused to allow these factors to have their usual mitigating effect because of his disgust at the appellants' conduct sacrificing their son's good name and character. In all the circumstances, however, I consider that the end result was that he probably treated the offence as being more serious than it in fact was; certainly in the light of the evidence of the first appellant's character presented to this court, a more lenient sentence is appropriate. Accordingly, I set aside the sentence of 3 months' imprisonment imposed on the first appellant and sentence him instead to pay a fine of $100. In default of payment he is to serve 2 months' imprisonment. Mr. Clark did not pursue the question of the order made in respect of the second appellant. In my view she was dealt with most leniently and the only alteration in the sentence which would be appropriate is an increase. However, as the appeal against the order has not been pursued and the respondent has not appealed against the order on the ground of its inadequacy I shall leave it to stand.

To summarise, the appeals of both appellants against conviction and of the second appellant against the order requiring her to enter into a recognizance are dismissed. The first appellant's appeal against sentence is allowed; the sentence of three months' imprisonment is set aside and a fine of $100 or 2 months' imprisonment in default is substituted for it.