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Director of Public Prosecutions v Taura [1979] FJLawRp 9; [1979] 25 FLR 128 (10 August 1979)

[1979] 25 FLR 128

SUPREME COURT OF FIJI

Appellate Jurisdiction

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAULIASI TAURA & ANOR

Mishra. J.

10th August 1979

Criminal Law‒Conspiracy‒where two alleged conspirators only are charged and tried together, if one is acquitted, both must be acquitted.

I. Khan for the Appellant.
E. Vula for First Respondent.
H M Patel for the Second Respondent.

It is not necessary to set out the facts in this matter. The learned Magistrate found that against one or two alleged conspirators, there was no case to answer, and he was discharged. There was however confessional evidence against the other defendant. The Magistrate accepted that if one at two conspirators was discharged the other should also be discharged.

The Prosecution appealed.

Held: Upon authority referred to the Magistrate's decision was correct.

Case referred to: D.P.P. v. Shannon (1975) A C 717.

MISHRA. J.

Judgment

The two respondents were charged with conspiracy to defraud contrary to section 421 of the Penal Code. No other persons, known or unknown, were mentioned in the charge as being involved in the alleged conspiracy

At the end of the prosecution case the learned Magistrate upheld the defence submissions of "no case" and acquitted the respondents. The Director of Public Prosecutions appeals against the order of acquittal on the following grounds: ‒

"(1) The Learned Trial Magistrate erred in law and in fact in holding that there was no case to answer against the first and the second Respondents and thereby acquitting them.

(2) The Learned Trial Magistrate erred in law in concluding that in a conspiracy charge in which two accused are charged with conspiracy with each other and with no other person, if he acquitted one accused he must necessarily acquit the second accused."

Prosecution alleged that during the period March‒August 1977 the firm of Woolworths had to pay the Tip Top Bakery for a much larger quantity of bread than was actually received by them. During that period, the first respondent was the receiving clerk for bread at Woolworths and the second respondent the Tip Top Bakery employee who delivered the bread. The two, alleged the prosecution, had conspired together to defraud Woolworths by getting them to pay the bakery for bread not delivered or received.

No evidence was available to show precisely what quantity of bread was received each day by Woolworths during that period. A mass of documents, auditor's analyses, and account's graphs were produced to show that, during these months, much greater quantity was shown by the records to have been received than the average for other months. There was also some evidence to suggest that the bread trolleys used by Woolworths could not have held such large quantities.

No submissions were made at the hearing of the appeal on the admissibility of some of the documentary evidence put in by the prosecution and there is no need to advert to it. The Court was invited by the prosecution to infer from the evidence that the entries on the dockets showing the quantities of the bread received during the period must be false and that Woolworths had been defrauded by the two respondents. The charge, however, was one of conspiracy and what the prosecution had to prove was the existence of an agreement between the two respondents to do what was allegedly done.

The learned Magistrate, quite correctly in my view, held that no inference of any conspiracy could with any certainty be drawn from such vague evidence and, as this was the only evidence against the second respondent, there was no case for him to answer.

In addition to the above evidence, however, there was a statement made by the first respondent to his employer, which, if believed, could amount to a confession of guilt. After a trial within a trial this statement had been admitted as voluntary and therefore, prima facie, this respondent had a case to answer. The question then arose: Could the trial against him continue after the acquittal of the second respondent at the end of the prosecution case?

The learned Magistrate said:

"As I understand the position Accused 2 having been acquitted a Prosecution cannot be maintained successfully against Accused 1‒I therefore order that Accused 1 also be acquitted there being no longer a case for him to answer on the charge now before the Court-he is also acquitted."

This, says counsel for the appellant, is an erroneous view of the law of conspiracy as it disregards the House of Lords' recent decision in Director of Public Prosecutions v. Shannon (1975) A C 717. He concedes that the Magistrate's attention was not drawn to this case during the trial.

In Shannon 's case the facts briefly were as follows; Shannon was charged with conspiring with one T to commit an offence. He pleaded guilty. T, who pleaded not guilty was later tried and acquitted. Shannon then appealed on the ground that where only two persons are charged with conspiracy, if one is acquitted, the other must also be acquitted. The Court of Appeal allowed the appeal and certified the following point of law to the House of Lords for final and authoritative determination (p. 736):

"If two persons alone (that is to say with no other persons named or unnamed) are indicted for conspiracy together and the first pleads guilty but the second pleads not guilty and is subsequently tried and acquitted, must the conviction of the first upon his own confession thereupon be quashed?"

Their Lordships' answer is formulated in the headnote in the following terms
(p. 717):

" .. .. where two conspirators were tried separately it was no ground of itself for quashing the conviction of one of them, whether following his plea of guilty or after verdict of a jury, that subsequently his co‒conspirator was acquitted or had his conviction quashed."

It is important to note that the House of Lords was specifically asked to deal with a case where the two alleged conspirators had been separately dealt with; one on his own plea the other after a subsequent trial. They were not asked to, and they did not, make any authoritative statement to cover a case where two conspirators are jointly charged and are dealt with by the same jury. Touching on the subject, however, each judge did make statements specifically intended to be treated as obiter. It is, nevertheless, interesting to look at these statements to see which way the majority of the House was inclined.

Lord Morris of Borth‒y‒Gest expressed the view that in case of a joint trial of two alleged conspirators, it would be wise to adhere to the long-established "rule" that if one is acquitted the other must also be acquitted.

He said (at p. 755):

"In the administration of the criminal law it is particularly desirable that complications and subtleties should if possible be avoided. A 'rule' which at least at first sight would appeal to many as having the backing of common sense ought not lightly to be jettisoned. I consider, therefore, that in the situation posed it would be wiser to adhere to the 'rule' and that summings up should give effect to it."

Viscount Dilhorne, on the other hand, said (p. 761):

"If it were necessary in this case to decide whether or not the long‒established rule was now obsolete, it is these considerations which would incline me to holding that it was, the foundation for it having gone and the court now being able to ascertain what happened at the trial."

Lord Simon agreed with Viscount Dilhorne and said (p. 769):

"I would therefore be in favour of a declaration that the whole body of rules whereby the acquittal of B of conspiracy with A must of itself be held to be inconsistent with A's conviction of conspiracy with B has no subsisting validity."

Lord Salmon agreed with Lord Morris. He said (p. 772):

"If A and B are tried together for conspiring with each other and with no one else, the judge should nevertheless, in all save the most exceptional cases, continue to direct the jury that they should convict or acquit both, that is to say, they cannot convict the one and acquit the other. This may not accord with strict logic. The law does not, however, rest wholly upon logic but more upon experience and common sense."

Lord Reid who did not deliver a separate judgment stated that he had read the speech of Lord Morris and was in agreement with it (p. 744).

It would, therefore, appear that, in case of a joint trial of two alleged conspirators, only two out of five judges, were prepared to jettison the long‒established "rule" that the juries ought to be directed that if one is acquitted the other must also be acquitted. As I have already stated the statements in Shannon relating to a joint trial are intended to be, and should be treated as, obiter.

Shannon's case should not, therefore, be regarded as having brought about any change in the law of conspiracy where two persons charged with conspiring with each other (and no others) have both pleaded not guilty and are tried together.

The instant case was exactly of this nature and I must hold that the learned Magistrate's view of the law was correct.

Both grounds fail and the appeal is consequently dismissed.

Appeal dismissed.