Supreme Court
7th February, 1979
Staine, J.

Criminal Law - No case to answer - Absence of evidence to prove essential element of the offence - Identification of the stolen items is an essential element of the charge of dishonestly receiving goods knowing the same to have been stolen.

SUBMISSION OF NO CASE TO ANSWER

In this case the accused in charged with dishonestly receiving 61 pairs of jeans trousers, "Sea Breeze" brand, the property of Michael Ruocco, knowing the same to have been stolen.

The evidence called by the Prosecution showed that on or about the 9th February 1978 "Mike's" Store, the property of Mario Ruocco was broken into, and, among other things a quantity of jeans trousers and skirts were stolen therefrom. The jeans were all "Sea Breeze" brand but when Mr. Ruocco was shown in Court a quantity of jeans he could only say they were similar to the ones stolen from his store. The jeans carried no tags indicating they were "Sea Breeze" brand, but this absence might be cured if the Jury accepted the evidence regarding the particular stiching.

Mr. Ruocco's evidence was "I cannot say that these jeans are the ones stolen from my store".

Mr. Michael Heusner the owner and Manufacturer of "Sea Breeze" jeans was also able to identify the jeans in Court as "Sea Breeze" jeans by the stiching and various other characteristics. Mike's Store was one center for "Sea Breeze" jeans, but not the only one. However on 6th February, 1978 was the last time he saw certain jeans in Mike's Store, and at that time Mike's was the only store who had those jeans, and he gave evidence of the manner of production.

But even this evidence stopped short of identifying the jeans in Court positively as being the jeans stolen from Mike's store. And having regard to the fact that the last time Mr. Heusner saw the jeans sold by Mike's was on the 6th February, 1978 and also the fact that the stealing therefrom took place on the 9th or thereabouts of February 1978, plus the fact that other persons had been selling similar "Sea Breeze" jeans, this evidence could hardly be regarded as positive identification that the jeans in Court were those stolen from Mike's Store.

There is no dispute that the accused bought 61 pairs of jeans from one Ferguson and obtained a receipt therefore, and even if the price paid for 61 pairs of jeans can be regarded as such a ridiculously low price, that a reasonable jury properly directed, might infer from this evidence that the accused when he bought the jeans knew they were stolen, that would still not identify them as the jeans stolen from Mike's Store. But Ferguson from whom the 61 pairs of jeans were bought was not called as a Prosecution witness. No doubt he may have been the best person to say where the jeans, the subject of this following prosecution, came from. In the absence of such evidence a void has been created.

At the close of the case for the Prosecution, Mr. S.W. Musa, Counsel for the accused, moved the Court to rule that there was no case for the accused to answer as an essential element of the charge namely that the 61 pairs of jeans were stolen from Mike's Store had not been proved by the Prosecution. In this connection Counsel referred the Court to

R. v. Young (1964) C.A.R. 292 at 296
And also to a number of authorities, including
R. v. Hell 7 C.A.R. 250

There seems to be some confusion regarding a submission of no case to answer, when an essential ingredient of the charge has not been proved, and a submission based on insufficient evidence to leave to a jury. In the latter case the judge has a discretion to exercise, and the exercise of that discretion may include the determination of matters of fact which should properly be left to the jury; and in the former where the judge must act as a matter of law. The present submission is one based on law, in my opinion. For the purposes of this decision it is only necessary to refer to R. v. Hell 7 C.A.R. In his judgment in this case Avery J. said "We think it is clear that at the trial the identity of the wire in the cart with the stolen wire was disputed by the prisoner. It has thus become the duty of the Chairman to ask the jury whether they were satisfied that the wire found in the prisoner's cart was stolen wire and whether he knew that it had been stolen when he received it but the Chairman made no reference to the first point at all and assumed that the wire was stolen wire."

The conviction was quashed.

I am therefore of the opinion that identity is an essential element of the charge. Looking at section 95 of the Evidence Ordinance some assistance is gained from the reading of this section as here the prosecution is required to prove possession of property recently stolen and I do not think they would be able to rely on this section in this case.

I agree with Counsel for Defence that there is no case to answer and rule accordingly.

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