Bellington v. R. Crim. App. 146-A-71; 23/7/71; Kwikima Ag. J.

Bellington v. R. Crim. App. 146-A-71; 23/7/71; Kwikima Ag. J.

            The appellant was charged with Burglary c/s 294(1) of the Penal Code. he was convicted of attempting to break into a building with intent to commit a felony. The only witness to identify the appellant was one Catherine. The magistrate accepted her evidence because “(1) She was quite familiar with the accused. In fact they are relatives; (2) she had a torch with her and she was able to identify the accused with the help of the light.”

            Held: (1) “There is no watertight evidence of the appellant’s identity. Catherine simply shouted the appellant name. She did not describe him in court or to Alois the first neighbour to answer her alarm. A description of the appellant’s clothes at the time would have removed any doubt especially if it was repeated by Alois to whom Catherine should have first described how she recognised the appellant. There is a real danger of Catherine being honestly mistaken about the identity of the man who tried to break into her house.” (2) “There is no evidence of overt manifestation of such intention (to commit a felony). All the court did was to rely on Catherine’s guess that the intruder intended to steal from her house. For all Catherine knew the intruder may have intended to commit a misdemeanour.” (3) “The learned state attorney sought to move this Court to Substitute a conviction for malicious damage to property. (In Ernest S/o Joseph 1969 H. C. D. 147) it is held that malicious damage to property cannot be substituted for attempted breaking.” (4) Conviction quashed and sentence set aside.