Supreme Court
Appeal No. 6 of 1978
14th November, 1979
Staine, J.

Criminal law - No case submission - Charges dismissed - Appeal - Decision unreasonable - Sufficiency of Evidence - Admission - S.89 of Evidence Ordinance, Chapter 18 - Setting aside of no case submission.

J U D G M E N T

The Respondent, a police constable, was charged before the magistrate for the Stann Creek Judicial District on two counts of stealing.

At the conclusion of the case of the Prosecution, a submission of no case to answer was made by Counsel for the Respondent. The magistrate thereupon upheld the submission and dismissed the charges against the Respondent. From this dismissal, (the Complainant) Appellant now appeals, and the Appeal is brought on two grounds:

(1) that the decision was unreasonable and could not be supported having regard to the evidence; and
(2) that the Magistrate erred in law in holding that he was unable to convict the Respondent of the offence of Receiving, because he had not been charged with the said offence.

At the hearing before the magistrate, the evidence against the Respondent was in a fairly narrow compass, and the facts are not in such as to be in any manner of a nature calling for any special acumen.

The first witness, was a visitor from the United States of America who, deposed to arriving in Dangriga on the 9th February, 1978. He was traveling in a motor vehicle and was accompanied by a national of this country and a friend from the United States of America.

The evidence was that he parked his car at the pier in Dangriga and then went to sleep inside a house at the end of the pier, having first secured the car and its contents. At the time the car was secured, the visitor had left in the car some cash amounting to some $80 US and a camera which was inside the glove compartment of the car. Other things were said to be inside the trunk of the car.

Sometime in the early hours of morning, the visitor was awakened by the Respondent who was dressed in police uniform, and who told the visitor that he could not remain there sleeping and had to move on. Whereupon, the visitor hurriedly got into his car and drove to the airstrip some 8 miles outside of Dangriga, but not before noticing that his car had been rummaged and there were things scattered about. The visitor and his friends having arrived at the airstrip shortly after 3:00 a.m. went to sleep, and on awakening later that morning returned to the pier in Dangriga, and then in the light of daylight began to make a search of the car. He then discovered that his camera case was in the car and half under the seat, but the camera itself was missing, as was an unused roll of film, which, apparently, was already loaded in the camera. Some money was also missing.

The visitor, according to the evidence, later that morning reported the matter to the police, and at the hearing of the case identified a camera as being the one that he had lost.

The visitor's friend also a citizen of the United States of America similarly discovered on returning to the pier that his camera was missing, and in like manner, made a report to the Police. Again at the hearing the missing camera was produced and identified by the owner.

It is worthy of note that both these two persons who gave evidence at the trial identified the Respondent as the person who had, so to speak, caused them to remove from the town pier and also said he was partly dressed in police uniform at the time.

The Respondent at the trial did not ask any questions of these two witnesses.

There was also evidence that the Respondent had on the morning of February 9th taken photographs of his fellow constable's children with a camera which was identified at the trial. There was evidence also that the Respondent had been on duty on the night of the 8th and 9th February and had in the course of that duty, around about 2:00 a.m. and 3:00 a.m. of the 9th February, left the Police Station in Dangriga on a bicycle, saying that he was going to patrol. So it seems that the question of identification was not a factor which created any doubt in the mind of the Magistrate.

The Respondent was present in the Police Station in Dangriga when the report was made to the sergeant in charge of the Police Station and thereupon told the sergeant that he wanted to tell him something. Upon hearing this, the sergeant drew the Respondent aside and then went into the sergeant's office and the sergeant closed the door.

The Respondent then proceeded to tell the sergeant the story, which in a nut shell, was that on going back to the pier later in the morning of the 9th February, he had come across a camera on the ground, and that he was in possession of the camera. The Respondent told the sergeant also that he had the camera hidden in the left of the Police Barrack room and that another camera which he had found, was in Dangriga.

It appears at this stage that the sergeant then sent one P.C. Baeza who came back bringing a camera and reported, in the presence of the Respondent, that he had found it in the left of the Police Barrack room. The sergeant then took the camera into possession and the camera was later identified by the visitor from the United States of America named Barker, who identified the camera as being the one that he had lost.

Thereafter the sergeant charged the Respondent with the two counts of stealing.

Looking at the evidence before the magistrate it was clear that there was no dispute as to identify. It is clear that the fact of the Respondent having searched the visitor's car was not disputed. What was disputed was that he had stolen the camera.

At the hearing of this appeal no submission was made on the magistrate's reasons for his decision, but this Court is of necessity bound to refer to that document in which the magistrate sets out his reasons for his decisions.

In that the magistrate says and I quote "The defendant was charged for stealing but he could only have been convicted of stealing if the Prosecution had proven beyond the shadow of a doubt that the defendant had dishonestly appropriated one or both of those cameras."

I am struck by the phrase "beyond the shadow of proof of a doubt"'. The rule as far as I am aware is that the burden of proof resting upon the Prosecution in every criminal trial, is that the Prosecution must prove its case beyond a reasonable doubt or so that the Court feels sure. The doctrine that the burden is now elevated to 'beyond the shadow of a doubt' is indeed novel, and it may be that in doing so the magistrate was placing upon the Prosecution a burden which it could never discharge.

The second matter to which advert is made as so far as requirement of proof of dishonest appropriation is concerned; the magistrate had before him, evidence, which if considered in their proper prospective, would have been an accurate guideline to him in answering the questions before him. There was (a) the Respondent had used film from one of the cameras which was loaded with unused film to take photographs of his fellow constable's children; and (2) if the Respondent on his own story were to be believed he had found these cameras in circumstances which, one would expect, would lead a reasonable trained person to assume that the camera belonged to the occupants of the car that had been forced to leave the pier, and if the Respondent kept that camera without doing more, that would be stealing by finding within the meaning of section 190 of the Criminal Code.

Then having found the camera why should the Respondent, a police constable, resort to hiding it? One would expect in these circumstances as a custodian of the law, in all circumstances, the Respondent would have treated this as found property, and at least bring it to the attention of his superior officers.

The magistrate did in fact refer to section 89 of the Evidence Ordinance chapter 18 of the Laws which requires that, in circumstances where an accused person has made an admission, but later on at his trial pleads not guilty to the charge or charges, he should not be found guilty solely on the evidence of his own admission unless there is present sufficient confirmatory evidence.

What may have troubled the magistrate was the definition of confirmatory evidence. I have before laid it down (see the case of Ignacio Coye vs Cpl. of Police 229 Gill, Appeal No. 13 of 1974 in which is defined confirmatory evidence as independent evidence connecting the accused person with the commission of the crime, but not necessarily in a material particular). In this case there was, in my opinion, abundant confirmatory evidence in the finding of one camera in the very place where the Respondent said he had hidden the camera. The question therefore arose what greater confirmatory evidence did the magistrate require in this case?

Looking further at his reasons for decision it is abundantly clear that the magistrate did not believe the Respondent's story regarding the finding of the camera. It also appears from the record that the main two Prosecution witnesses were not challenged or cross - examined on the evidence, so that what the magistrate had before him was evidence of a very cogent nature implicating the Respondent in the commission of the crime which he is charged. Where the magistrate appears to have gone wrong was in saying that neither of the witnesses saw the Respondent actually take the cameras, and also that the possibility existed that in rummaging the car one of the cameras could have fallen to the ground where the Respondent told the sergeant he had found the camera in the same area. The magistrate totally failed to appreciate that that particular camera had been in the glove compartment of the car and later on, the case for the camera was found empty, but stuck half way under the seat of the car. It would take a remarkable feat of imagination to explain such a happening without coming to the conclusion that the camera had been deliberately taken, and with an intention to deprive the owner permanently of it. I find that in this case the magistrate acted too hastily in upholding a submission of no case to answer; and I would take this opportunity of drawing attention to the Practice Note contained in the 1962 A.E.R I am of the opinion that there was a case to answer, and indeed on that evidence the Respondent should have been convicted.

I would therefore set aside the magistrate's finding of no case to answer and allow this appeal. I substitute ,therefore, a conviction of the Respondent on both counts and impose a fine of $50.00 on each of the two counts, to be paid within 14 days, in default 14 days imprisonment in each case, sentences to run concurrently.

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