Supreme Court
Appeal No. 5 of 1979
4th March, 1980.
Jones, J.

Mr. Denys Barrow, for the Appellant.
Mr. Hubert Elrington, for the Respondent.

Inferior Court Appeal - Appeal against conviction - Charges of housebreaking contrary to section 119 of the Criminal Code and stealing contrary to section 154 (a) of the Criminal Code - Evidence - Chief Magistrate viewing all the circumstances of the case reasonably having regard to the evidence - Chief Magistrate directing himself properly in law although expressing his reasons for decision without precise clarity and certainty - Appeal dismissed.

J U D G M E N T

The Appellant was charged before the Chief Magistrate with housebreaking contrary to section 199 of the Criminal Code and stealing contrary to section 154 (a) of the Criminal Code and after trial was found guilty on the 25th January, 1979 on both charges and was fined $100 and $5 costs in respect of each offence.

On the 2nd February, 1979 a Notice of Appeal against conviction and sentence was filed; and on the 5th March, 1979 more detailed grounds of appeal were filed to the following effect:-

(1) The decision was unreasonable.

(2) The decision could not be supported having regard to the evidence.

(3) The decision was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided.

(4) The decision was erroneous in point of law.

The evidence for the Crown was that the Cashier (Miss Myvett) at the Melting Pot Disco after securing the office left a bag in that office at about 1:30 a.m. on the 13th November, 1978 containing her eyeglass case in which was a sum of $210 and a sum of $40. Later, as a result of what P.C. Jones (who was apparently minding the door of the disco) told the Cashier, she returned to the office and found her bag missing and a window in the office pushed down. She reported this loss to the C.I.B. the same morning and later she saw the Appellant at the Police Station after 3 a.m. when he was being searched by the Police. She said that the money recovered from the Appellant was in the same way as her money had been arranged in her eyeglass case.

The Cashier told the Court below that she could positively identify two of the $20 notes by markings on them as well as a mark on one of the $5 notes found on the Appellant. She also said that she knew the money by the way it was folded up.

P.C. Jones told the Court that he was doing special duty at the Melting Pot Disco dressed in full police uniform; and that whilst performing such duty he saw the Appellant push his hand into the booth and take out a black leather bag. When the Police Constable asked the Appellant whose bag it was, the Appellant put his fingers to his lips and said "Shhh." Seeing this (he said) he made after the Appellant but the Appellant ran into Duck Lane taking the bag with him. The Police Officer then returned to the Disco and spoke to the Cashier. He said in cross examination that he had seen the Appellant take the bag out of the ticket booth; and said that he was watching the Appellant all the time. He said that the Appellant had forced the window by pushing it in with his fist.

Sgt. Bernard gave evidence of being on mobile patrol at the material time and of receiving a radio report as a result of which he apprehended the Appellant near Constitution Park. Sgt. Bernard confirmed that the Cashier was at the Police Station when he arrived with the Appellant and that she immediately said that he (the Appellant) was the same man. Mr. Denys Barrow (for the Appellant) made much of this remark, and asked how could the Cashier make such a statement when she did not see anyone take her bag. I think, however, this remark is explained by the fact that P.C. Jones made a report to the Cashier after he had seen the Appellant remove the bag, and that he most probably told her whom it was that he had seen removing the bag. Moreover the Appellant was known to the Cashier, she had seen him dancing in the Disco that night, so that she would have no difficulty in identifying him later at the Police Station. This witness corroborated the Cashier's evidence regarding her positive identity of the money found on the Appellant as being the monies that had previously been in her bag.

The next witness was P.C. Timmons and he gave evidence of being on duty in the C.I.B. Office in the early hours of the 13th November, 1978, and his evidence substantially corroborates the evidence of the Cashier and that of Sgt. Bernard.

The Appellant gave evidence in the Court below and whilst admitting that he had been in the Melting Pot Disco it was his case that he did not take the Cashier's bag and that the money found on him represented the gains enjoyed from gambling earlier in the evening. He also gave evidence of being beaten up at the Police Station. The Appellant could not explain how the markings got on the money, and said that the money was not actually shown to him at the Police Station.

The Appellant's mother also gave evidence that the Appellant had shown her marks on his body at the Police Station, and she said that the marks were freshly made and that the skin was broken, and on some of them were specks of blood.

Mr. Barrow thought it strange that the learned Chief Magistrate commenced his Reasons for Decision by first dealing with the Defence case. I must say that I agree with him, and I take the view that it is always preferable for such Reasons to commence with the Prosecution's case and then to go on to the Defence case; and I hope this will be followed in future.

Mr. Barrow also suggested that by dealing with his Reasons in this way the Learned Chief Magistrate had fallen into error in first mentioning the Appellant's evidence that the money found on him was won by gambling, and then stating ... "This was not substantiated in any way"; thus suggesting some onus was on the Appellant. Upon due reflection, I do not think that the Learned Chief Magistrate fell into error. I take it that he was merely commenting on the fact that the Appellant's allegation that the money in his possession had been gained from gambling was not supported in the evidence.

Mr. Barrow next turned to a most unusual statement made by the Learned Chief Magistrate when he said:

"I find as a fact that the defendant was beaten at the C.I.B. Office by the police, but this was for the purpose of ascertaining the whereabouts of the handbag and the eyeglass case, not to secure a confession."

I do not know the purpose of this finding, and I would have thought that having found that the Appellant had been beaten at the C.I.B. Office it would not matter a jot what the purpose of such beating might have been for such treatment at the hands of the Police must always be totally unjustifiable. I am unaware of what action the Learned Chief Magistrate took regarding this particular finding, but I take this immediate opportunity of drawing it to the attention of the Commissioner of Police (to whom a copy of this judgment is to be sent) for such action as he may deem expedient.

Mr. Barrow next took issue with what then follows:

"However not because I reject the defendant's assertions of innocence means that I must automatically find his guilt proven. It is not for him to prove his innocence, but for the prosecution to prove his guilt, so that I can feel sure."

The first sentence of this quotation could certainly have been more happily worded, but the final sentence does, I think, make it clear that the Learned Chief Magistrate did not, after all, misdirect himself on the burden of proof.

The Learned Chief Magistrate accepted the prosecution witnesses as being witnesses of the truth, and I agree with Mr. Elrington (Counsel for the Crown) that P.C. Jones' evidence is certainly not so incredible that it should be rejected. It occurs to me that P.C. Jones could have been momentarily distracted when the Appellant "bolted", as he put it; and I do not find it unrealistic or beyond belief that he did not have the opportunity to apprehend the Appellant as he made off with the bag, in spite of the fact that both of them were in comparatively close proximity at the time. The fact is that this witness avers that he saw the Appellant take the cashier's bag out of the office and make off with it.

After the most careful consideration I do not find the decision of the Learned Chief Magistrate to be unreasonable; neither can I find that his adjudication is unsupported having regard to the evidence. I consider that he viewed the circumstances reasonably, and that his decision was not erroneous in point of law.

It follows that the appeal against conviction is dismissed.

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