Mgora v. R. Crim. App. 369-M-71; 7/12/71; Jonathan, Ag. J.

 

Mgora v. R. Crim. App. 369-M-71; 7/12/71; Jonathan, Ag. J.

The appellant was convicted of stealing c/s 265 of the Penal Code. The evidence adduced by the prosecution was to the effect that the complainant had dropped her wrist watch and a couple of months or so later, another woman was seen wearing what resembled the lost watch. Investigations revealed that the watch had previously been in the hands of the appellant who gave it to his girl-friend-cum-wife. The appellant claimed that he had bought the wrist-watch. On these facts the appellant court found that there was considerable doubt if the watch belonged to the complainant. The question remained as to whether the appellant could be convicted of stealing by finding.

            Held: (1) “It is a cardinal principle that in criminal proceedings, unless otherwise specifically provided the onus is always on the prosecution to establish every ingredient of the offence charged. Here it was not for the appellant to establish that he did not know the owner nor that he did not believe he could find him. To my mind, the subsection does not create a presumption that a person steals who finds and converts lost property thereby requiring him to exonerate himself by showing that he had no fraudulent intent. The prosecution had to prove that the appellant knew the owner or that he had reasonable grounds for thinking that the owner could be traced. Evidence to this effect was completely lacking and so a prima facie case was not made out.”(2) Appeal allowed.