Court of Appeal allows appeal against conviction for stealing a wireless set due to unsatisfactory trial findings.

[*617] 1968 May 31

(VASSILIADES, P., STAVRINIDES, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Doros Kyriacou Tambouras,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3001).

Criminal Law - Conviction and sentence - Stealing a wireless set - Findings of trial courts - Unsatisfactory finding of trial Court interfered with by Court of Appeal.

Findings of trial courts - Unsatisfactory finding - Interference with by Court of Appeal.

A. Pantelides for the Appellant.

L. Loucaides, Counsel of the Republic, for 'the Respondents.

JUDGMENT

The Judgment of the Court was delivered by: -

VASSILIADES. P.: This is an appeal against conviction and sentence. The conviction is challenged on a number of grounds stated both in the original notice and a supplementary note, which, however, can he summarized in two:

(a) That the findings of the trial Judge are against the weight of evidence; and

(b) that in any case the fraudulent misappropriation of the stolen article was not established. [*618]

The appellant was charged of stealing a wireless set "between the 1st January and 31st December, 1962" valued at £12.- the property of the complainant. Eventually the trial Judge found that on the evidence before him "the charge should be amended so as to read '1963' instead of '1962' and of 'unknown value' instead of 'valued at £12'"; and directing amendment of the charge accordingly, convicted the appellant on the charge as amended. This is sufficient to indicate the uncertainty in the circumstances in which the alleged offence was committed.

The appellant is an electrician who at the material time was working in the shop of another mechanic-electrician at Morphou. The complainant who lives at a neighbouring village, handed over to the appellant an old wireless set for repair at the shop. Notwithstanding considerable uncertainty as to times and conversations regarding the matter, it is established beyond doubt that the appellant informed the owner of the wireless set that it was beyond repair, and that he could collect it from the shop. The complainant agreed to do so and promised to call for his set later. Considerable time later, the appellant left the shop in question, and went abroad leaving the wireless set in the shop, together with other similar articles, with the request to the shop-keeper and another person who was working in the shop and who gave evidence in this case, to inform the proprietors of unrepaired sets, including the complainant, to pass and collect their sets from the shop.

Several years later, when the appropriate authority took steps in connection with the annual licence of the wireless set in question, the complainant reported to [*619] the police that he had no such set in his possession as he had delivered it to the appellant. In the meantime, the shopkeeper removed his business elsewhere and complainant's set could not be traced. When questioned by the police, the appellant stated the facts as above adding that the missing set may have been thrown in the wastepaper basket together with other useless articles when the shop-keeper moved his shop away.

The trial Judge on the evidence before him, could not make a definite finding as to what happened to complainant's missing set. Reaching the

conclusion that the appellant was a bailee of the set, who had failed to give a satisfactory explanation as to what became of it, the trial Judge was "rather inclined to the view", as he put it in his Judgment (p. 14F) "that the accused has misappropriated it in some other way which he failed to disclose to the Court".

Learned counsel for the prosecution, very properly and fairly conceded during the hearing before us, that upon such a finding the conviction challenged by the appeal, could not be supported.

Considering the evidence on the record as a whole, we are unanimously of the opinion that the trial Judge's finding of misappropriation by the appellant, is unsatisfactory (Koumbaris v. The Republic

(1967) 1, J.S.C. p. 13 at p. 22; Meitanis v. The Republic (1967)

2 J.S.C. p. 236 at p. 246); and that it cannot support a conviction either on the original or on the amended charge. We, therefore, allow the appeal, quash the conviction and set aside the sentence.

Appeal allowed.