Rozer v. R. Crim. App. 495 – D- 70: 30/9/70; Biron J.

 

Rozer v. R. Crim. App. 495 – D- 70: 30/9/70; Biron J.

The appellant was convicted of stealing by public servant c/s and 265 of the Penal. The appellant, an employee of the Ministry of Communications Labour and Works engaged one Gontram at 4/60 per day as a casual labourer on Road Works being carried out by the Ministry during the material period Gontram was paid 115/= for 25 days work when in fact he had worked only one day on the Road Works and the other 24 in the appellant’s garden. All the relevant witnesses for the prosecution testified that they were aware that Gontram had been paid by Government for days when he worked in the appellant’s garden. At the hearing of the appeal, the appellant’s advocate argued (1) that the prosecution witnesses particularly Gontram were accomplices and the magistrate had not directed himself on the danger of relying on accomplice evidence and the requirement of corroboration and (2) even if all the evidence is accepted the appellant’s action did not constitute stealing as no money in the Government’s salary for Gontram, evercame into the appellant’s possession.

            Held: (1) “In DINKERRAL RAMKRISHAN v. R. (1957)

E. A. 336 the Court of Appeal for Eastern Africa upheld the submission of counsel for the appellant and I quote from the judgment at page 337” that on the, first appeal the appellant was entititled to have the appellate courts own consideration and views of the evidence as a whole and its own decision thereon”. ……. Likewise the respondent is equally so entitled … particular so, as the law now stands the Republic has the same right of appeal from an acquittal as has a conviction person from a conviction, and the appellant may well be the Republic ……………….. in a more recent case SCOTT v. MUSIAL (1959)2 Q B D. . 429 the Court said at page 437. “Where there is an appeal from the decision of a judge sitting alone, the appeal is by way of re-hearing”. There is obviously no distinction between an appeal from a decision of a judge sitting alone, and that of a magistrate sitting alone. (2) ………… there

Is no rule of law that the evidence of an accomplice requires corroboration, but rather the contrary as expressly laid down in section 142 of the Evidence Act 1967 ……. It is however a salutary of practice to require corroboration of the evidence of an accomplice”.  (3) “None of the witnesses in this case, with the possible exception of Gontram, really stood to gain from the offence and even Gontram would just as well have worked for Government in order to receive his pay, as for the appellant …………..unlike the Magistrate directing myself on the dangers of convicting on accomplice evidence, I consider that the evidence as a whole, that Gontram worked in the appellant’s garden which was the main factual issue, should be accepted as in fact it was by the Magistrate. Once this evidence is accepted it established the guilt of the appellant without reasonable doubt.” (4) “Section 258 of the Penal Cone expressly states at sub-para(1) A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulently converts to the use of any person other that the general or special over thereof anything capable of being stolen, is aid to steal that thing.” The appellant by completing the various documents where under Gontram was paid, fraudulently converted Government money to the use of Gontram in return for Gontram’s labour on his garden and therefore stole such money”. (5) Appeal dismissed.