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Holland, Regina v [1974] PNGLR 7 (27 August 1969)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 7 - Regina Holland

[1974] PNGLR 7

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

HOLLAND

Port Moresby

Frost ACJ Clarkson J O’Loghlen AJ

25-27 August 1969

CRIMINAL LAW - Stealing - Appeal against conviction and sentence - Sufficiency of evidence to prove guilt beyond reasonable doubt - Trial judge acting upon a wrong principle when sentencing - Recent possession of goods known to be stolen - Uncontradicted evidence.

The appellant was indicted on a charge of stealing a sum of money which came into her possession as a servant of a retailing company. She was convicted of this charge and sentenced to four weeks’ imprisonment. The appellant then appealed against both the conviction and the sentence.

Held

(1)      The following cases applied when the Full Court was called upon to decide whether there was sufficient evidence before the trial judge sitting without a jury to prove the appellant’s guilt beyond reasonable doubt: Paterson v. Paterson [1953] HCA 74; (1953) 89 C.L.R. 212; Powell and Wife v. Streatham Manor Nursing Home [1935] A.C. 243; Watt or Thomas v. Thomas [1947] A.C. 484; and Smith v. The Queen [1957] HCA 3; (1957) 97 C.L.R. 100.

(2)      In the circumstances and bearing in mind the trial judge’s estimate of the appellant and the witnesses, there was ample evidence upon which the charge could be found proved beyond reasonable doubt.

(3)      The trial judge acted upon a wrong principle when he took into account on sentence the fact that during the trial, the appellant had made an attack upon fellow employees.

R. v. Witham (No. 3) [1949] Q.W.N. 2 followed.

Per curiam. Where there is evidence that goods, recently stolen, were found in the possession of an accused; then if the trial judge accepts the accused’s explanation or even if he does not accept it, but is left with a reasonable doubt as to whether the taking was fraudulent, it is his duty to acquit.

Per curiam. Where there is evidence sworn to prove one side of an issue and there is no evidence whatever on the other side to contradict it, a judge sitting without a jury is bound to accept that evidence unless it is in itself so incredible and unreasonable that no reasonable man could accept it.

Holman v. Holman (1964) 81 W.N. (N.S.W.) (Pt. 1) 375 approved.

Appeal

At her trial on a charge of stealing as servant, it was alleged against the appellant that whilst employed as a Shop Assistant by Steamships Trading Company Limited, she stole the sum of $6.80 from that Company by failing to place money, paid to her by a customer, in the Company’s till.

The appellant gave evidence to the effect that she had not placed the money in the till as she wished to use it to change a $10.00 note.

The trial judge convicted the appellant and sentenced her to two weeks’ imprisonment. The appellant appealed against both conviction and sentence.

The grounds of appeal as amended are summarized as follows:

1.       There was insufficient evidence upon which the trial judge could be satisfied beyond reasonable doubt that the sum of $6.80 had been stolen by the appellant.

2.       The evidence of one Mou Toea and Inspector Giddings should not have been accepted where it conflicted with that of the appellant.

3.       The trial judge misdirected himself in a number of respects: first, as to the onus of proof where recent possession was involved; next, as to the weight to be given to the character evidence called on behalf of the appellant and its effect, and also as to the uncontradicted evidence of the appellant which should not have been rejected.

4.       The trial judge failed to give sufficient weight to the presumption of innocence.

5.       Certain of the trial judge’s findings against the appellant based on Inspector Giddings’ evidence were wrong.

6.       The verdict was unsafe and unsatisfactory.

Counsel

R. H. B. Wood, for the appellant.

J. Greville Smith with him P. H. Steele, for the respondent.

Cur. adv. vult.

27 August 1969

FROST ACJ CLARKSON J O’LOGHLEN AJ: The appellant was convicted on 14th April, 1969, in the Supreme Court sitting at Port Moresby, of larceny as a servant and sentenced to one month’s imprisonment. She now appeals against her conviction and she has also applied for leave to appeal against sentence. The appellant was a shop assistant employed at its main store in Port Moresby by Steamships Trading Company Limited. The sum which she was convicted of stealing was $6.80, which was paid to her on 13th February, 1969, by Inspector Giddings for the purchase of a pair of sunglasses.

The staff employed at the cosmetics counter were the manageress Mrs. Bolt, the appellant, and two indigenous female assistants, Mou Toea and Nami. Mrs. Bolt and Nami took their lunch hour between twelve and one o’clock. It was not disputed at the trial that, while Mrs. Bolt and Nami were away at lunch and shortly before 12.30 p.m., Giddings came to the cosmetics counter, bought a pair of sunglasses, paying $6.80 for them with three $2 notes and eighty cents in cash, and that the appellant omitted to ring up the sale or to put that money into the till. Her defence was that, in the morning, she had decided to change a $10 note of her own, that she remembered this when Giddings paid over his money and that she had retained this money as part of the change. She said that in the course of a transaction soon after, she had put her own $10 in the till, together with the eighty cents in cash, and had taken out two $2 notes to make up the change of her own $10 note.

At the trial, the witness, Mou Toea, said that at no time did she see Miss Holland take the money out of her pocket and put it into the cash register....

The next witness was Inspector Giddings, who said that on 13th February at about 11.30 a.m., he went to the cosmetics counter, where he examined and priced a pair of sunglasses on a rack near the cash register. He then left the store and went to Becker’s office, where he was handed $8 in cash, including three $2 notes, the numbers of which he noted on a piece of paper. He put the money in his pocket and returned to the main store. He went to the cosmetics counter where he was served by the appellant. The appellant showed him one pair of sunglasses which she obtained from the shelf, but he then selected the pair from the rack, which he had previously examined and which he said he would like to purchase. The appellant put the glasses in a brown paper bag and after paying her the money, he walked from the store. Inspector Giddings gave evidence that he then kept the cosmetics counter and the cash register continually under observation until 1.15 p.m. At 1.15 p.m., Giddings and another checked the cash in the cash register at the cosmetics counter as against the entries on the till roll, and found that the cash in the till was 99 cents more than the total of the transactions upon the till roll. He found that there was no amount of $6.80 recorded on the roll....

For the defence, two witnesses were called who gave evidence of the appellant’s good character and the appellant herself gave evidence. On 13th February, when she arrived at work, she said that she had with her a wicker open-type shopping basket, containing certain personal items and a money purse made of leather, about 8 inches by 4 inches. It was an old purse, the lining was split and she used to slip her bank book into the split lining, and, on this day, there was in the lining her bank book in which she had folded a $10 note. Her purse contained two $2 notes, two single dollar notes and some loose cents. She had withdrawn the $10 note from the bank on the Tuesday and produced her bank book to substantiate this. The bank book showed that her credit on 11th February, was $302.11. She said that what she intended to do with the money, which totalled approximately $16, was to pay for the service charge of a car, which she proposed to pick up at lunchtime, to buy some fruit, some lunch and some cigarettes, and have the remainder of the money for weekend shopping. To make these payments and small purchases at the lunchtime, her intention was to change her money, meaning, presumably, the $10 note. When Inspector Giddings came up, she showed him one pair of sunglasses which she took from the shelf, but he was not interested. He chose other sunglasses, she replaced them in the box and put them in a paper bag. He gave her the exact money and turned and walked from the counter. She said that after Inspector Giddings left, another lady came along, but didn’t buy anything. She asked the appellant a query on a hair colour, which the appellant said the store did not stock. She had stood there when this customer came, still standing with the money. She had the money in her hand and she realized that she wanted to change her own money. She stood there and thought: “Oh, I can change this money—I can change my money”. She then went to the till, but thought: “No”. She was going to take a further $4 from the till and then thought: “No, I won’t do that, I’ll put my $10 in and then remove the extra $4”. She went from the till and walked out to a small storeroom at the back of the counter where her basket was. She dropped the $6 into her basket and from the purse she removed her bank book and took the $10 out of it and came back into the counter. At the counter, there was a person waiting to be served. Mou Toea was serving a customer. She served the waiting customer. She had slipped the $10 note into her pocket with the eighty cents which she was going to put in the till. The customer bought a lipstick for $1.55 and a mascara for $2.10, making a total of $3.65, (the till roll produced in evidence did show a purchase of $3.65). At this stage, she had $3.65 in her hand and $10.80 in her pocket. She went to the till, rang up the $3.65, put the money in and then put the $10 note in the till and the eighty cents and removed a further two $2 notes, making $4. All this had happened within five or six minutes of Inspector Giddings purchasing the glasses. It is important to note her evidence as to what she did with the change which she said she had taken. The $4 she had taken from the till she took and dropped into her basket with the other $6, so that there was in the basket $10, in the form of five $2 notes. In her purse there were then the two $2 notes, the $1 note and about ninety-five or ninety-six cents in change, because she had taken a $1 note to the supermarket to buy a chocolate. When Mrs. Bolt came back from lunch and it was time for the appellant to go to her lunch, her evidence was as follows: “I went in once again to my basket, I took the $10 that was just lying in my basket and I put $8 in my bank book, four $2 notes in the bank book, and left the rest of the money just loose in my purse”. Thus, there was no money in the basket proper, there was some money in the purse and there was $8 in the bank book. She put the bank book once again into the split lining of the purse. As she was going to lunch, Becker asked her to accompany him to his office, which she did. He asked her if she would show him her bag. She put the wicker basket on his desk and he said: “Your money purse, where you have your money”. She said: “So I took the purse out and put it on his table. He opened the purse and just slightly tipped it and the notes that were just lying in it fell out on to the table. He picked up the notes and took a piece of paper and began to examine the notes against this piece of paper he had. The bank book didn’t come out. It was still in the lining.” She said to him when he had the notes: “I have more money in my bank book” and she took it out to give to him and left it on the desk, but he didn’t even look at it. He examined only the loose money. He did not examine the four $2 notes that were in the bank book, which she said she used subsequently for bail. She said that it was a common practice for the staff to change money in the till. Sometimes this was done whilst another employee checked it, but she had also done it when she was alone. She thus denied that she had stolen the money.

The appellant also called one Schwartz, a director of Steamships, who produced certain accounting records and till rolls. It is unnecessary to mention the details of his evidence. The reason why he was called on behalf of the appellant was to show that from time to time there were discrepancies between the amount of cash found in the cash registers and the amount which, according to the till roll, there should have been in the cash register. Discrepancies were shown on typical records of varying amounts, up to about $14. It was plain from this evidence and from the fact that there had been three other employees operating the cash register during the morning, that it could not be inferred that the appellant had stolen the money merely from the fact that the till roll showed an excess of only ninety-nine cents. If the cash register had been properly operated and the appellant’s story was true, then there should have been an excess of $6.80 on the total of the till roll, because that transaction had not been rung up. The witness did state that the discrepancies could happen quite innocently. It could, for instance, happen that there are two customers in quick succession and the register would be open, and the sales assistant may forget to close the register and with the till still open place into it the money for the second transaction without ringing it up.

The final witness was Mrs. Bolt, the manageress, who had had twenty-five years’ experience as a shop assistant, including at Selfridges in London. In her experience, when a member of the staff was suspected and a test sale planned, the precaution was taken of checking the fill immediately prior to the test sale being made, to ascertain whether the cash tallied with the till roll, or the precise discrepancy. She said it was not an unusual practice on the cosmetics counter for employees to change their money in the till. There was no strict procedure laid down. Normally an employee would get someone else to change the money, if another employee were there, but if there was not, an employee would change her own money in the till, but if the only other employee was an indigenous assistant, she would not have asked her to check it. The usual procedure was to ring up a “No Sale”, but normally the till would be kept open from the last sale and then the employee’s money changed with the cash register open.

At the outset of his reasons for judgment, the learned trial judge stated the issues before him as follows:

“Both counsel have submitted that the sole question in the trial is whether I, as a jury, believe her in her explanation of how she came, as is admitted, not to pay this money into the cash register and ring it up thereon as was her duty. There is also the very real question in this trial and that is, even if I do not believe her explanation, does the evidence raise a doubt in my mind as to her guilt. If such a doubt is raised, then that I cannot believe her as a positive finding is immaterial and she is entitled to a verdict of: ‘Not Guilty’.”

His Honour stated the facts, some of which were undisputed, and then made further findings, relying on the evidence of Mou, whom he said he regarded as a witness of truth. His Honour stated that he did not accept the appellant’s story. He did not believe her story that she forgot to ring up the $6.80. He said that he did not think she was frank with Inspector Giddings about the money in her possession and he did not believe that she did, as she said, offer him her bank book saying that there was also some money in it besides the money she showed him by handing him her purse. His Honour mentioned that Inspector Giddings on this point was not cross-examined and he then concluded his reasons for judgment as follows:

“At the time when this trial was drawing to a close on Friday, I felt that, notwithstanding the evidence of character that had been given on behalf of the accused by two witnesses who in this community are outstanding in themselves and indeed in any community would be, notwithstanding that evidence, and because I had had much time to think about all the evidence and I had observed the accused woman, I felt that it did not raise in my mind any doubt that she was a thief. At 20 minutes to 4 o’clock, at the conclusion of counsels’ addresses, I reserved my judgment until this morning, not, perhaps, expecting that I might come to believe the accused but indeed hoping, and hoping most strongly, that during the weekend some doubt would arise in my mind, some nagging doubt, that would have entitled her to an acquittal. It is my very great regret that that has not occurred. I do not refer to all the evidence and the many reflections in my mind upon that evidence. I am, in fact, entirely satisfied that when she put this money in her pocket, as I have found she did, she intended permanently to deprive the company of it and I am satisfied beyond any reasonable doubt that she is guilty of the offence charged. I have no alternative but to return a verdict of guilty.”

The amended grounds of appeal which the appellant’s counsel relied upon to set aside the conviction were many, but in substance, they can conveniently be grouped together and summarized as follows:

1.       There was insufficient evidence upon which his Honour could be satisfied beyond reasonable doubt that the sum of $6.80 had been stolen by the appellant.

2.       The evidence of Mou Toea and Inspector Giddings should not have been accepted where it conflicted with that of the appellant.

3.       His Honour misdirected himself in a number of respects: first, as to the onus of proof where recent possession was involved; next, as to the weight to be given to the character evidence called on behalf of the appellant and its effect, and also as to the uncontradicted evidence of the appellant which should not have been rejected.

4.       The learned trial judge failed to give sufficient weight to the presumption of innocence.

5.       Certain of his Honour’s findings against the appellant based on Inspector Giddings’ evidence were wrong.

6.       The verdict was unsafe and unsatisfactory.

It is first necessary to refer to the function of this court on an appeal from a judge sitting without a jury upon the trial of an indictable offence. Mr. Wood relied on the following passage from Webb J. in Smith v. The Queen[vii]¹:

“Although this was a criminal trial we should deal with this appeal as we would deal with any other appeal from a judge sitting without a jury, that is to say we should form our own conclusions from the evidence, allowing for the advantage the trial judge possessed in seeing the witnesses give their evidence, when determining their veracity and quality. This appellate jurisdiction extends even to exercising if need be the discretion to reject confessional statements which if voluntary were nevertheless unfairly elicited, as the discretion is not a statutory discretion restricted by Parliament to the primary judge and which can be reviewed only within the limits imposed by well-known rules. In other words we must re-try the case, subject only to allowing for the trial judge’s advantage as stated. Then it is for this Court to say whether or not it is satisfied beyond reasonable doubt that the appellant committed the murders. We are not confined to inquiring whether the trial judge misdirected himself.”

The other members of the majority, Williams J. and Taylor J. both said that the question before them was whether there was evidence which proved beyond reasonable doubt the accused’s guilt, ibid pp. 118-145. But in cases such as the present appeal, where the learned trial judge saw the witnesses and based his findings upon their truthfulness the advantage referred to by Webb J. (supra) cannot be disregarded by an appeal court. Mr. Wood helpfully referred us to the full review of the cases by Dixon C.J. and Kitto J., in Paterson v. Paterson[viii]². Powell and Wife v. Streatham Manor Nursing Home[ix]³ was one of the cases reviewed. In that case, Lord Wright said:

“Two principles are beyond controversy. First it is clear that in an appeal of this character, that is from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal ‘must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong’: The Julia[x]⁴ per Lord Kingsdown, cited with approval by Lord Sumner[xi]⁵. And secondly the Court of Appeal has no right to ignore what facts the judge has found on his impression of the credibility of the witnesses and proceed to try the case on paper on its own view of the probabilities as if there had been no oral hearing.”

He went on as follows:

“The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate Court is in as good a position to decide as the trial judge. But where the evidence is conflicting and the issue is one of fact depending on evidence, any judge who has had experience of trying cases with witnesses cannot fail to realise the truth of what Lord Sumner says: as the evidence proceeds through examination, cross-examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse. He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonized, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance. But such inaccuracies may appear in a very different light when pointed to as isolated passages in the shorthand notes and abstracted from the human atmosphere of the trial and from the totality of the evidence. The judge will form his impression from the whole personality of the witness: he can allow for the nervous witness, standing up in a crowded court or worried by the strain of cross-examination. The judge may be deceived by an adroit and plausible knave or by apparent innocence: for no man is infallible; but in the main a careful and conscientious judge with his experience of courts is as likely to be correct in his impressions as any tribunal, unless perhaps, as some would say, a jury of twelve members is preferable. Yet even where the judge decides on conflicting evidence, it must not be forgotten that there may be cases in which his findings may be falsified, as for instance by some objective fact; ...”

The principles stated by Lord Thankerton in Watt or Thomas v. Thomas[xii]⁶ were also set out in the judgment of Dixon C.J. and Kitto J.[xiii]⁷:

“I.      Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion;

II.       The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

III.      The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.”

It will be convenient to deal with the first two grounds of appeal together. Although much of the evidence of Mou Toea was undisputed, there was one crucial conflict between the appellant and her as to the events immediately after the sale to Giddings. Further, although he was not cross-examined on the point, the effect of Inspector Giddings’ evidence was that the appellant did not produce the bank book or the notes in it, when asked could he see her money. His Honour saw the witnesses and observed the appellant. In his reasons, he referred to some matters of evidence, but not to all the “many reflections” in his mind on that evidence. He accepted Mou Toea as a witness of truth, and was unable to accept the evidence of the appellant. Bearing in mind the trial judge’s estimate of the appellant and of the witnesses Inspector Giddings and Mou Toea, we think there was ample evidence upon which he could find the charge was proved beyond reasonable doubt.

The trial judge’s estimate of the evidence and particularly that of Mou Toea was attacked by Mr. Wood. He put to us a number of criticisms of her evidence; that there were inconsistencies between her evidence and that of Inspector Giddings, her uncertainty as to dates, the obstacles to her observation, the fact that before the committal proceedings she had learnt her evidence off by heart and, as the transcript records, her silence to many questions asked of her. He also strongly relied upon the reprimand given to the witness by the appellant and submitted the former was not a disinterested witness. It is clear from his reasons that his Honour did have regard to the criticisms of Mou Toea which were strongly made before him at the trial, but having observed the witness, and with his knowledge of the local people, he was entitled to accept her as a witness of truth. On his observation of the witnesses, his Honour was entitled to disbelieve the appellant when she said that she showed the bank book and notes therein to Inspector Giddings and we consider that although his Honour mentioned the fact that Inspector Giddings on this point was not cross-examined, he was not relying on this matter alone but on his assessment of the witnesses. His Honour had not only the opportunity of observing the witnesses, but also no doubt appreciated the improbabilities of the appellant’s story which were strongly put to us by the learned Crown prosecutor. At this stage, we refer, although this matter appears not to have been canvassed at the trial, to the effect of the appellant’s evidence concerning the way she dealt with the money before she went to lunch, which was raised before us during the argument. We consider that the only interpretation to be placed upon the appellant’s evidence that she went in again to the basket, took the $10 that was just lying in the basket and put four $2 notes into the bank book and left the rest of the money just loose in her purse, is that the four $2 notes which she put into the bank book were four of the five $2 notes then in her wicker basket. As was pointed out, if this account were true, there could be one note only of those handed to her by Inspector Giddings remaining to be placed in her purse, and this was inconsistent with the unchallenged evidence of Inspector Giddings that he found two of his notes in the purse. We have reached the conclusion that nothing has been put to us to show that the learned trial judge was wrong in deciding that there was evidence sufficient to prove the charge beyond reasonable doubt and we accordingly consider that these grounds fail.

Mr. Wood then submitted that there was a number of misdirections, the first being as to the onus of proof where recent possession was involved. He submitted that the issue stated by his Honour at the outset, despite its apparent acceptance by counsel at the trial, was wrong and that the doctrine of recent possession applied, so that the issue should have been stated by his Honour in the terms appropriate to that doctrine, that is to say: “... it is only where (a jury) not only disbelieve the explanation, but feel that it is not an explanation which any reasonable man would accept as true that the doctrine is invoked, and when it is invoked they are entitled to accept the absence of such a reasonable explanation as evidence of guilt”, R. v. Jorgic[xiv]⁸. See also R. v. Schama and Abramovitch[xv]⁹. We consider that his Honour may well have had in his mind this sort of direction in view of his words, “There is also the very real question in this trial, that is, if I do not even believe her explanation: does the evidence raise a doubt in my mind as to her guilt”. We consider that the only meaning to be given to these words, having regard to the fact that it was undisputed at the trial that the appellant had taken and retained in her possession the money given to her by Inspector Giddings, was whether the appellant’s explanation, despite its non-acceptance, raised a doubt in his mind as to her guilt. Had it been so expressed this would have been a sufficient direction in a case of recent possession. See R. v. Garth[xvi]¹⁰. However, we do not consider this ground of appeal can be upheld because the present case does not turn on recent possession. The purposes for which that doctrine is used are stated by Griffiths C.J. in Trainer v. The King[xvii]¹¹ as follows:

“In any indictment for larceny, you must prove first of all that the property has been stolen and you must then prove that the person who stole is was the prisoner, or that it was stolen by some other person, and received by the prisoner, knowing it to have been stolen. It is a well-known rule that recent possession of stolen property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence.”

In the present case the question was not what inference should be drawn from the fact that goods shown to have been stolen were found in the possession of the appellant. The taking of the notes by the appellant and her possession of them were not disputed. The real question was whether the taking was fraudulent in terms of s. 391 of the Criminal Code as the Crown alleged.

If the learned trial judge accepted the appellant’s explanation or even if not accepting it he was left with a reasonable doubt whether the taking was fraudulent, it was his duty to acquit and it is abundantly clear from what he said that this is how the learned trial judge directed himself.

The next ground relied upon by Mr. Wood was that his Honour misdirected himself as to the weight to be given to the character evidence called on behalf of the appellant. There is no need for us to refer to the terms of the evidence. In dealing with it, his Honour said “... notwithstanding the evidence of character that had been given on behalf of the accused by two witnesses who in this community are outstanding in themselves and, indeed, in any community would be, notwithstanding that evidence, and because I had had much time to think about all the evidence and I had observed the accused woman, I felt that it did not raise in my mind any doubt that she was a thief.” The effect of evidence of good character has been stated as follows: “(The accused) may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged”. Attwood v. The Queen[xviii]¹². In England, it has been held that good character is primarily a matter which goes to credibility (R. v. Bellis)[xix]¹³ which is a statement not more favourable to the accused than that expressed by the High Court. See also R. v. Islam[xx]¹⁴. From his Honour’s reasons, it is plain that his Honour did take into account the evidence of good character which was called on behalf of the appellant and correctly applied the law. Similarly, we are of the opinion that there was no misdirection by his Honour as to the uncontradicted evidence of the appellant. As we have pointed out, her evidence was not uncontradicted. Both counsel referred to a useful statement of the law in Holman v. Holman[xxi]¹⁵. Sugerman J. said:

“How a court should treat uncontradicted evidence in a trial before a judge sitting without a jury or before magistrates was several times considered by Madden C.J., in the Supreme Court of Victoria. I shall refer to two only of his Honour’s decisions on this subject. In Richards v. Jager[xxii]¹⁶ the learned Chief Justice said that where there is evidence sworn to prove one side of the issue, and there is no evidence whatever sworn on the other side to contradict it, the Court is bound to accept it unless that evidence is ‘in itself so incredible and unreasonable that no reasonable man could accept it’. He went on to indicate that if the decision is founded on disbelief of the witness this should be disclosed. If this is not done, ‘then they are deciding in the teeth of the evidence without showing why they do so, and I do not think that is reasonable in any court of justice, or according to the principles to be applied by courts of justice’. Again in Swinburne v. David Syme & Co.[xxiii]¹⁷ his Honour said that he adhered most stoutly to the principle that where evidence is given on one side which is conclusive of the matter, which is in itself inherently probable, and not unreasonable or improbable, and where it is not contradicted by evidence on the other side, the tribunal which hears it is bound to accept it. ‘Because if it were otherwise’ his Honour said, ‘the decision would be a matter of caprice, a mere matter of prejudice, so that some judge might say — “I do not like this person or this kind of thing” ‘. Leaving aside questions of the witnesses’ demeanour or manner, it may be said that in general uncontradicted evidence in an uncontested proceeding which is not improbable or unreasonable should be acted upon—see Llewellyn v. Reynolds[xxiv]¹⁸; Sheahan v. Woulfe[xxv]¹⁹; Burnside Corporation v. Hillier[xxvi]²⁰. ‘We think’ Macrossan S.P.J. said in Sheahan v. Woulfe[xxvii]²¹, ‘our functions and usefulness as a court of appeal would be very much impaired if we were bound to uphold a judgment of justices which affected to disbelieve uncontradicted testimony on its face not unreasonable and probable ... A manifest rejection of uncontradicted evidence must be explained by some circumstances appearing from the evidence itself, and must be not unreasonable.’ ”

We dispose of this ground of appeal by saying firstly that it is clear the trial judge was influenced by his observation of the demeanour of the appellant, secondly that her evidence was not uncontradicted and thirdly, as we pointed out when dealing with the appellant’s version of how she disposed of the notes, that portion of her evidence is highly improbable and in our view unacceptable.

The next ground of appeal is that his Honour failed to give weight to the presumption of innocence, that is, his Honour did not properly apply the onus of proof. Mr. Wood referred to the expression “some nagging doubt” as requiring more than proof beyond reasonable doubt, but having regard to the words used by his Honour at the outset of his reasons when he stated the issue before him and to the whole of the last paragraph already cited in which his Honour used the words “any doubt” “some doubt”, and finally said that he was satisfied beyond any reasonable doubt that she was guilty of the offence charged, we consider that it is plain that his Honour did apply the proper test which was that he had to be satisfied beyond reasonable doubt of the accused’s guilt.

For the reason already mentioned, that is, that his Honour acted upon the whole of the evidence and his observations of the appellant, we consider that the ground also fails relied upon by Mr. Wood that his Honour placed weight on the fact that Inspector Giddings was not cross-examined as to the money held by the appellant in her bank book. In our view there is no ground for saying that the verdict was unsafe and unsatisfactory.

Accordingly, the appeal against conviction is dismissed. On the application for leave to appeal against sentence, we consider that it is unnecessary for us to consider the extent of this court’s jurisdiction under the Supreme Court (Full Court) Ordinance 1968, s. 28 (4). In our opinion, his Honour appears on the face of the record to have taken into account in sentencing the prisoner that she had made an attack upon other native employees which is not a proper consideration, R. v. Witham (No. 3)[xxviii]²². We therefore grant leave to appeal against the sentence and consider that it should be reviewed. Whilst the crime of larceny as a servant is a serious crime, involving breach of trust, and would normally be punished by a term of imprisonment, we feel that full weight should be given in favour of the appellant to her previous good character, the publicity of her conviction which followed a trial in this Court of over a week’s duration and the serious strain on her health, which has since caused her to seek treatment. We consider that she has been sufficiently punished and therefore order her discharge.

We therefore dismiss the appeal against conviction, affirm the conviction, grant leave to appeal against sentence, quash the sentence and order that the appellant be discharged.

Appeal against conviction dismissed. Conviction affirmed. Leave to appeal against sentence. Sentence quashed.

Solicitors for the appellant: Cyril P. McCubbery & Co.

Solicitor for the respondent: P. J. Clay, Acting Crown Solicitor.