Regina v Holland [1974] PNGLR 7

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ, Clarkson J, O'Loghlen AJ
• Judgment Date: 27 August 1969
• Citation: [1974] PNGLR 7
• Year: 1974
• Court: Supreme Court
• Judgement Number: FC2

Full Title: Regina v Holland [1974] PNGLR 7

Full Court: Frost ACJ, Clarkson J, O'Loghlen AJ

Judgment Delivered: 27 August 1969

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) 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) 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 cas 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 ave 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...