SUPREME COURT Shoplifting Conviction Quashed

Press, Volume CIII, Issue 30558, 29 September 1964, Page 10

SUPREME COURT Shoplifting Conviction Quashed

Mr Justice Henry, in a reserved decision in the Supreme Court yesterday, allowed the appeal of Reginald David Pool, a clerk (Mr P. T. Mahon), against his conviction in the Magistrate’s Court on a charge of stealing two packets of preserved ginger from a SelfHelp shop at 743 Colombo street. His Honour said that evidence was given in the Magistrate’s Court that Pool was seen by an assistant in the shop, a Miss Findlay, aged 17, to put the ginger in his pockets and leave the shop after paying for bread. He was accosted outside the shop by Miss Findlay. On his return to the shop he produced the. ginger, and gave a false name and address. Pool claimed at the Magistrate’s Court hearing that while he was in the shop he had some discussion with his dentist, his Honour said. This was confirmed by the dentist.

“The appellant then, so he claims, forgot about the ginger when he continued with his purchase of bread, but that, on going outside, he met his sister, who was waiting for him, and she asked him what about the ginger, and he suddenly remembered that he had forgotten he had put It in his pocket and that he said to her that he had

forgotten to pay for the ginger. This was confirmed by his sister. The appellant said he had just turned to go back when Miss Findlay approached him. Miss Findlay strongly denies that the appellant had turned back, and says he was still walking away.” His Honour said that in the magistrate’s judgment there was no reference to the very important evidence of the appellant’s sister, and the crux of the appeal was a clear failure by the magistrate clearly to consider whether the evidence called for the defence, although not necessarily accepted, was sufficient to leave a reasonable doubt as to guilt. It was impossible to say, his Honour added, that there were not reasons other than guilt which might have caused the appellant to give a false name. The evidence of Miss Findlay, he said, was open to considerable criticism. In view of that, it was of the utmost importance that a specific finding should have been made concerning the conflict between her and the appellant’s sister on whether the appellant was returning to the shop. Miss- Findlay’s evidence on this point was not borne out by the shop manager. “Proved Inaccuracy” “No reference is made in the judgment to the proved inaccuracy of Miss Findlay as a witness, and no refer-

ence is made to the important conflict between her and the appellant’s sister,” his Honour said. “Moreover, Miss Findlay seems to have figured in a number of previous detections of shoplifting and seems to be over-eager to show her detecting ability. Her very keenness and obvious desire to uncover shoplifters even in her time off work ought to engender great care in accepting her evidence, particularly in view of the obvious failure to give truthful evidence of the position she occupied when making her observations.” It was unsafe to hold that the lower court gave proper consideration to the task with which it was faced in view of the- nature of the evidence tendered by the defence, his Honour said.

“Justice is not done unless all defences are fully considered and dealt with on a proper footing, and an accused person should not be deprived of any chance of acquittal which may be open on the evidence,” he said. “Accordingly, in my view the conviction ought not to stand. The appeal will be allowed, and the conviction is set aside.”

Decree Nisi

Mr Justice Macarthur in the Supreme Court yesterday granted June Margaret Wyllie (Mr N. H. Buchanan) a decree nisi in divorce against David MacDonald Wyllie (Mr B J. Drake) on the ground of adultery.